Berkeley Journal of Employment & Labor Law
Volume 25 | Issue 2
Article 6
September 2004
From Hester Prynne to Crystal Chambers: Unwed
Mothers, Authentic Role Models, and Coerced
Speech
Rachael Knight
Follow this and additional works at: http://scholarship.law.berkeley.edu/bjell
Recommended Citation
Rachael Knight, From Hester Prynne to Crystal Chambers: Unwed Mothers, Authentic Role Models, and Coerced Speech, 25 Berkeley J.
Emp. & Lab. L. 481 (2004).
Available at: http://scholarship.law.berkeley.edu/bjell/vol25/iss2/6
Link to publisher version (DOI)
http://dx.doi.org/doi:10.15779/Z38Q92H
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From Hester Prynne to Crystal
Chambers: Unwed Mothers, Authentic
Role Models, and Coerced Speech
Rachael Knightt
IN TRO DUCTION ..........................................................................................
I. THEORETICAL OVERVIEW ..............................................................
A. Role Models and Social Control.............................................
B . Covering .................................................................................
II. COURTS' TREATMENT OF HOMOSEXUALS WHO REFUSE TO
482
484
484
4 88
C O VER ............................................................................................
4 90
A.
Homosexuality, Covering, and the "Realm Where Status
and Expression are Manifestations of One Another ............ 490
1. The Mutability of Homosexuality ..................................... 490
2. Courts' Treatment of Covering and Non-Covering
H om osexuals ....................................................................
49 1
B. CoercedSpeech and Expressive Association ......................... 495
III. FROM HESTER PRYNNE TO CRYSTAL CHAMBERS: OUT-OFWEDLOCK PREGNANCY AND APPROPRIATE ROLE MODELS ......... 499
A. The Anti-DiscriminationLegal Framework........................... 500
B. Courts' Treatment of Unwed Mothers in the Workforce ........ 503
1. "Sexual Libertines": Deviants Who Refuse to
Cover. .. .........................................................................
504
2.
... Versus "SexualNeophytes " Striving Towards
N orm ative Identities.........................................................
513
IV. THE RIGHT TO EXPRESSIVE ASSOCIATION AND THE TITLE VII
PRO TECTION ................................................................................... 52 1
C ON CLU SION ............................................................................................. 524
"[Among the crowd standing before the prison] there was very much the
same solemnity of demeanour on the part of the spectators; as befitted a
people amongst whom religion and law were almost identical, and in whose
f J.D., University of California, Berkeley (Boalt Hall), of 2005.
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BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW
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character both were so thoroughly interfused, that the mildest and the
severest acts of public discipline were alike made venerable and awful.
Meagre, indeed, and cold, was the sympathy that a transgressor might look
for, from such bystanders at the scaffold..."
"What do we talk of marks and brands, whether on the bodice of her gown,
or the flesh of her forehead?" cried [a spectator] the ugliest as well as the
most pitiless of these self-constituted judges. "This woman has brought
shame upon us all, and ought to die. Is there not law for it? Truly there is,
both in the Scripture and the statute-book. Then let the magistrates, who
have made it of no effect, thank themselves if their own wives and
daughters go astray!"
The ScarletLetter, Nathanial Hawthorne
"It is precisely in the lives of those considered most deviant that we will be
able to discern a vision of liberation."
Dorothy E. Roberts, Deviance, Resistance, and Love, 1994 UTAH L. REV. 179,
180.
INTRODUCTION
This Comment investigates how the judicial system actively upholds
cultural norms and traditional notions of identity and acceptable behavior through
decisions based more on moral judgment and value-assertion than precedent.
Through an examination of cases that deal with employment discrimination by
groups and institutions whose primary function is the education and mentoring of
children, this Comment addresses the following questions: Who is allowed to be
a role model? Who is allowed to work with youth in a leadership capacity? How
narrowly are the bounds of appropriate role model behavior defined? The
corresponding set of cases is an acutely focused lens; the morals and virtues
expressly endowed upon children are a particularly salient means through which
to look at the values and identity assumptions that society condones and
condemns.
By looking at courts' treatment of cases involving discriminatory
employment actions taken towards "deviants" working in schools, libraries,
youth groups and recreational clubs, this Comment demonstrates how courts
have cloaked their moral judgments in a far more ominous legal analysis. In
these cases, the courts have established a dangerous precedent: when an
unmarried, pregnant woman does not want to hide or "cover" her status or
identity, the employer organization's First Amendment right of expressive
association trumps the employee's Title VII claim. The courts draw their
reasoning in these cases from a line of sexual orientation employment
discrimination cases. However, while homosexuals are not a protected class
under Title VII, pregnant women's civil rights are expressly protected under the
1978 Pregnancy Discrimination Act, incorporated into Title VII. By turning a
discriminatory employment action into protected First Amendment action, and
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
then using thinly-veiled moral reasoning to decide. that the employer's free
speech right takes precedence over the employee's Title VII right, courts are
creating a body of law that could be used to further undermine the force of civil
rights legislation in the United States. I argue in this Comment that courts should
not use freedom of association claims to excuse discriminatory employment
actions that explicitly violate Title VII protections.
This Comment is divided into the following four parts. In Part I, I discuss
the place of role models in our society and how courts' and legislatures' ideas
about appropriate role models have furthered social control and the
internalization of majoritarian cultural norms. I then investigate how these
cultural norms are in turn used to pressure "deviant" individuals to "cover" by
suppressing mutable characteristics that might identify them as deviant.
In Part II, I apply these theoretical constructs to an analysis of how the
judicial system, while slowly moving towards increased protection for
homosexuals, has nonetheless upheld discriminatory actions taken against
homosexuals who refuse to "cover"-individuals who choose to not hide their
identity and instead to advocate actively for the rights of homosexuals in society.
Explicit in the courts' rationale of these cases is a focus on "coerced speech."
While none of the defendants in the three cases considered have expressly made
coerced speech claims, the courts focused on the right of employers/organizations
to be free from forced public approval of "deviant" conduct and identity. The
courts argued that by publicly advocating for homosexual rights, the various
plaintiffs tried to "coerce" their employers/ organizations to support their politics
- action that, in the judges' opinion, is an imposition that justifies discriminatory
sanctions. These arguments effectively preference First Amendment rights over
the right to be free from discrimination. This conflict of rights is complicated by
the fact that homosexuals are not yet a federally protected group under Title VII.
However, Title VII does protect pregnant women. Thus, in Part III, I apply
the theoretical and juridical analyses from Parts I and II to cases involving
unmarried, pregnant women who work with children in a role model capacity. A
deeper look at these cases shows how courts have uniformly upheld women's
Title VII rights when those women "covered" by getting married immediately,
living with their parents, or actively trying to conceal their unmarried status from
the children for whom they were responsible. In contrast, the courts have ruled in
favor of employers' discriminatory hiring and firing practices when unmarried
pregnant women have declined to "cover" by adamantly refusing to get married
or by presenting themselves as positive role models of alternative lifestyles.
Like homosexuality, extra-marital sexual behavior is concealable-at least
until a woman becomes visibly pregnant. I argue that becoming pregnant is
analogous to the act of "coming out;" pregnancy forces private "deviant"
behavior into the public sphere. In this way, both identities are action-based.
Like the homosexual who has publicly self-identified, the pregnant woman has
come to personally embody her sexual actions. In both sets of cases, the essential
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rhetoric of the courts' decisions is identical: those who refuse to hide their nonnormative identities are coercing their employers to appear as though they accept
and support such behavior. While the courts' legitimization of discrimination is
unjustified in the context of decisions pertaining to sexual orientation, it is even
more pernicious when applied to a Title VII protected trait. I argue that the
courts are primarily concerned with the appearanceof morality and the women's
silent complicity in the organizations' maintenance of a morally upright public
image. To this end, courts have echoed the reasoning of the homosexuality cases
and have consistently held that an employer's First Amendment right of
expressive association trumps an employee's right not to be discriminated
against. Although discrimination is not a protected First Amendment right, the
courts have held that when an individual's behavior threatens to tarnish its
employer's public reputation, discriminatory employment actions are warranted,
because inaction would be equated with support for deviant behavior.
In Section IV, I explore the Supreme Court's holdings in Roberts v. Jaycees'
and Board of DirectorsofRotary Internationalv. Rotary Club of Duarte2 which
ruled that the right of expressive association does not extend so far as to allow for
discrimination. Roberts and Duarteconcluded that the states' legitimate purpose
of combating discrimination is strong enough to justify some infringement of a
private organization's freedom of expressive association. In applying the Court's
rational in these cases to an analysis of the unwed pregnancy cases, I find that
these decisions clearly establish that rulings that preference an employer's right
of expressive association over a woman's Title VII right should not be given
authority.
The Comment concludes in Section V by questioning whether freedom of
expressive association claims should predominate over Title VII claims in
employment actions. I argue that, as articulated by the Supreme Court in Roberts
and Duarte, the government's compelling interest in ending discrimination
overrides an organization's freedom of expressive association. To find otherwise
is to hold that discrimination is a protected form of speech.'
I.
THEORETICAL OVERVIEW
A.
Role Models and Social Control
In 1790, Noah Webster, the creator of the first American dictionary, wrote:
"The only practicable method to reform mankind is to begin with children; to
1. 468 U.S. 609 (1984).
2. 481 U.S. 537 (1987).
3. This argument was put forth by the dissent in Boy Scouts ofAm. v. Dale, 530 U.S. 640 (2000). See
Part lI.B. below.
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FROM HESTER PR YNNE TO CRYSTAL CHAMBERS
banish, if possible, from their company, every low bred, drunken, immoral
character... The great art of correcting mankind therefore, consists in
prepossessing the mind with good principles."
Echoing such sentiments, the Supreme Court held in Ambach v. Norwick
that New York's law forbidding non-citizens from teaching in public schools
furthered a legitimate state interest.' The Court reasoned that since public
schools "prepare individuals for participation as citizens, and.. .[preserve] the
values on which our society rests," public school teachers may be regarded as
performing a task "that [goes] to the heart of representative government."
Through both "the presentation of course materials and the example he sets, a
teacher has an opportunity to influence the attitudes of students toward
government, the political process, and a citizen's social responsibilities. This
influence is crucial to the continued good health of a democracy." 7 Under this
reasoning, teachers are the means through national/patriotic ideals are passed
from generation to generation. Elaborating, the Court explained that "A teacher
serves as a role model for his students, exerting a subtle but important influence
over their perceptions and values... Certainly a State also may take account of a
teacher's function as an example for students, which exists independently of
particular classroom subjects."' Thus, for the Court, a teacher's job is not only to
educate students, but to represent a model of upstanding citizenship.
The Supreme Court has used the idea of role modeling in contradictory
ways. The Court's inconsistent uses of the role model ideal in Ambach and
Wygant v. Jackson Board ofEducation,9 elucidate the manner in which the Court
has employed the role model ideal to both insure homogeneity and to inhibit
diversity and heterogeneity. In Ambach, the Court used a role model rationale to
legitimate the politics of difference as a justification for excluding non-citizen
teachers from New York public school classrooms.1 0 Yet in Wygant the
Supreme Court found role model theory too amorphous to be a sufficient defense
of affirmative, identity-based hiring and firing practices. It held: "The role
model theory employed by the District Court has no logical stopping point. The
role model theory allows the Board to engage in discriminatory hiring and'' layoff
practices long past the point required by any legitimate remedial purpose."
In his dissent, Stevens argues that in the context of public education, a
school board might conclude that:
An integrated faculty will be able to provide benefits to the student body
4.
5.
6.
7.
8.
9.
10.
11.
NOAH WEBSTER, A COLLECTION OF ESSAYS AND FUGITIVE WRITINGS (1790).
441 U.S. 68 (1979).
Id. at 76.
Id. at 79.
Id. at 78-80.
476 U.S. 267 (1986).
441 U.S. 68.
Wygant, 476 U.S. at 275.
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that could not be provided by an all-white, or nearly all-white faculty. For
one of the most important lessons that the American public schools teach is
that the diverse ethnic, cultural and national backgrounds that have been
brought together in our famous "melting pot" do not identify essential
differences among the human beings that inhabit our land. It is one thing
for a white child to be taught by a white teacher that color, like beauty, is
only "skin deep"; it is far more convincing to experience that2 truth on a
day-to-day basis during the routine, ongoing leaming process.1
The underlying premise of Steven's dissent is identical to the Court's
rationale in Ambach: teachers and schools help to establish the morals,
beliefs and ideals held by children and the adults they become and thus
should personally embody those ideals. Yet the majority's opinion does not
seem to carry Ambach's rationale over into Wygant. Rather, it appears as
though the Court uses a role model theory to exclude, and finds it to have
"no logical stopping point" when the same reasoning could be used for
inclusionary purposes.
Commenting on the court's paradoxical treatment of role modeling
rationales, Adeno Addis asserts that the role model ideal is used not as a method
of empirical analysis, but as a way of making and challenging normative claims
about appropriate activities. 3 He writes: "[t]he courts embrace the term as
jurisprudentially meaningful and precise when the issue involves the exclusion of
marginal groups from political and social life. When minority claimants invoke
this rhetoric to support normative positions that do not correspond with the
horizons of significance of members of the court, however, courts debunk the
rhetoric as amorphous and jurisprudentially suspect."' 4
Since Ambach, the rhetoric and moral debate surrounding conceptions of
appropriate role models for our nation's children has only intensified. As the
rigid social norms of the 1950s and early 1960s eroded and collapsed, allowing
for greater expression of identity and individualism, a simultaneous rising tide of
"moral panic" '" swelled up. Who we allow to teach, mentor, and influence our
children has become a central point around which this anxiety rages. The debate
about who we allow to shape the minds of our children continues today, as
evidenced by the discussion surrounding the Employment Non-Discrimination
Act of 1997 (ENDA), which missed passage in the Senate by one vote. ENDA
was intended to protect individuals against employment discrimination on the
basis of sexual orientation. Many of the concerns senators raised during the
ENDA debate focused on the potential impact of increased protective rights for
12. Id.at 315.
13. Addis Adeno, Role Models and the Politics of Recognition, 144 U. PA. L. REV. 1377 (1996)
[hereinafter "Adeno"].
14. Id. at 1381, 1387, 1455.
15. See ERICH GOODE & NACHMAN BEN YEHUDA, MORAL PANICS: THE SOCIAL CONSTRUCTION
OF DEVIANCE (1994).
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FROM HESTER PRYNAE TO CRYSTAL CHAMBERS
homosexual schoolteachers upon students. 6 Asserting that the presence of a
homosexual teacher would disrupt the psychological and moral development of
students during their adolescence, Senator John Ashcroft argued that the years
when "young men ... move from boyhood to manhood ... are critical times
when role models are very important."' 7 Rooting his argument against the
ENDA in the idea that homosexuals are not appropriate role models for the
nation's youth, he declared: "In hiring schoolteachers, or camp counselors, or
those who deal with young people, you never just hire a teacher. You are always
hiring more than a teacher. You are hiring a role model."' 8 Elaborating upon
Ashcroft's points, Senator Don Nickles argued that the ENDA would allow gay
and lesbian schoolteachers to proselytize in the classroom, allowing no recourse
for local school boards to control in--classroom speech. He asked the Senate,
"What about a school board making decisions.., in Alabama where maybe this
small community says we do not think we should have avowed open homosexual
leaders, gay activists, as teachers in the fifth grade?"' 9
Explicit in the debate about appropriate role models is the idea that to be
deemed an appropriate role model, and to be allowed to advise, mentor, or teach
children, an employee must outwardly conform to societal standards of
acceptable behavior. Richard Delgado writes that "To be a good role model, you
must be an assimilationist... You are expected to conform to prevailing ideas of
beauty, politeness, grooming, and above all responsibility.2" Being a role model,
then, is often less about mastering a body of knowledge or signifying the
possibilities of accomplishment than it is about becoming an emblem for a set of
values that society deems worthy of replication.2'
Indeed, as the Supreme Court stated so baldly in Ambach, role models play
a critical part in the maintenance, continuation, and replication of certain social
16. See Anthony Varona, Setting the Record Straight.- The Effects of the Employment Non-Discrimination
Act of 1997 on the First and Fourteenth Amendment Rights of Gay and Lesbian Public Schoolteachers, 6
COMMLAW CONSPECrJS 25-29 (1998).
17. Id. at 25 (citing 42 Cong. Rec. 59986, 510,000 (daily ed. Sept. 6, 1996) (Statement of Sen.
Ashcroft)).
18. Id.
19. Id. at 26 (citing 42 Cong. Rec. 59986, 510,066 (daily ed. Sept. 9, 1996) statement of Sen.
Nickles).
20. Richard Delgado, Affirmative Action as a MajoritarianDevice: Or, Do You Really Want to be
a Role Model?, 89 MICH. L. REV. 1222, 1227 (1991).
21. As such, women and ethnic/racial minorities who assume positions as "role models" are often
"tokenized"-made into two-dimensional examples/proof of the ways in which women and
ethnic/racial minorities can succeed, as long as they conform to societal notions of success and
appropriate outward identity. Moreover, becoming or being made into a role model for a minority group
often serves a second purpose: proving that financial/political/creative success is available to those
groups that the role models are supposed to represent and inspire. Addis writes: "Serving as a role
model ... is about the politics of recognition. .... He or she signals that the [society] does not continue
to devalue the lives of these groups. He or she provides a counter-narrative intended to destabilize the
narrative of exclusion that accompanied the marginalization and devaluation of members of those
groups .. " Adeno, supra note 13, at 1410.
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values. Nanette Davis and Bo Anderson write that "there are two fundamental
ways of controlling people's social behavior: one controls them morally by
having them internalize certain norms, the other controls them externally through
positive and negative sanctions."22 Social control is defined as "those policies,
practices, and institutional arrangements that a society designs in order to deal
with groups or social situations that are referred to as 'problematic,'
'troublesome,' or 'deviant."' 23 Effective social control uses both carrots and
sticks to accomplish its ends. Role models provide proof that if a person plays by
the rules and works hard, she will become successful, famous, rich, happy, and/or
respected. The flipside of this is stigmatization: if a person refuses to strive
towards a standard set of "American" ideals and norms, she is branded as
deviant, lacking, and immoral. In his book, Stigma,24 Erving Goffman writes that
"[t]he stigmatization of those with a bad moral record can clearly function as a
means of formal social control; the stigmatization of those in certain racial,
religious, and ethnic groups has apparently functioned as a means of removing
these minorities from various avenues of [society]."2 5
The enforcement of social control is often located in "institutionalized
organizations and occupations that are specifically mandated to carry out control
tasks: police, psychiatrists, social workers, and so forth."' 6 I would add the
justice system to this list, as inherent in the enforcement of social norms is an
institutionalized system--grounded in political power-which decides those
norms. The legal system both defines and enforces normative cultural values
through its decisions.
B.
Covering
Deviance can be defined generally as the condition of being different from
an established norm. It can also be construed as the act of refusing to become
who you are "supposed to" become, or refusing to confine yourself within the
norms that societal institutions have established through various mechanisms of
social control. Alternatively, deviance is the condition of being stigmatized and
refusing to "cover."
As defined by Goffman, "covering," is the process of making one's
stigmatized trait-be it race, gender, sexuality, ethnicity, national origin,
disability, or some other characteristic-as invisible and unobtrusive as possible.
Covering is distinct from "passing," which is the practice of actively concealing
one's stigmatized trait from society and pretending to be what one is not. On the
22. NANETTE DAVIS & Bo ANDERSON, SOCIAL CONTROL: THE PRODUCTION OF DEVIANCE IN THE
MODERN STATE (1983) at 30 (emphasis omitted). [hereinafter "DAVIS AND ANDERSON"].
23. Id.
24. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963)
[hereinafter "GOFFMAN"].
25.
Id. at 139.
26.
DAVIS AND ANDERSON, supra note 22, at 18.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
other hand, while the coverer at once openly acknowledges that she has a trait
that is deemed to be "deviant" from a norm, she makes efforts to minimize this
trait by acting in ways that neutralize the trait's prominence in others' experience
of her. Goffinan explains that "Passing and covering are... [ways in which] the
individual exerts strategic control over the image of himself... that others glean
from him." Implicit in this process is a form of "tacit cooperation" between the
stigmatized and the non-stigmatized: "the deviator can afford to remain attached
to the norm because others are careful to respect his secret, pass lightly over its
disclosure, or disattend evidence which prevents a secret from being made of it. 27
In turn, those without stigmatizing traits "can afford to extend this tactfulness
because the stigmatized will voluntarily refrain from pushing claims for
'
acceptance much past the point the normal finds comfortable."28
Kenji Yoshino argues that homosexuals, racial minorities, and women
cover, and are often asked to cover, particularly in the workplace.29 Deviants
cover in a variety of ways:
The African-American woman who stops wearing cornrows to succeed at
work may be covering. The native Hawaiian broadcaster who mutes his
accent to retain his broadcasting job may be covering. The Latino
venireperson who denies knowledge of Spanish to remain on a jury may be
covering. ... The female scholar who eschews feminist topics may be
covering. The woman who strives to be as aggressive or tearless as the
stereotypical man may be covering. In all these instances, the individual is
not attempting to change or hide her identity. Nonetheless, she is
assimilating by making a disfavored trait easy for others to disattend.3 °
Covering is a kind of performance, and a taxing one at that. Yoshino cites a
non-fiction book, The Good Black,3 as an example of an African-American
man who spent his entire life trying to assimilate into "white" society and the
32
behavioral, aesthetic, and professional norms that go along with it.
Commenting on the emotionally destructive effects of this approach, the book's
protagonist described: "I was bending over backward all the time to avoid
making white people uncomfortable. 33
However, the demands made by those who refuse to cover - that society
accept them as they are - are oftentimes viewed as outrageous and self-centered.
Citing Goffinan's idea that the emotional distress and actualized experience of
stigmatization is based less on moral or physical "imperfection" and "deformity"
than on the patterns of behavior inherent in "able-ist society," Lennard Davis
27.
28.
29.
30.
Id.
Id.
Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002) [hereinafter "Yoshino, Covering"].
Id. at 779-780.
31.
PAUL BARRETr, THE GOOD BLACK: A TRUE STORY OF RACE INAMERICA (1999).
32.
33.
Id. at 885.
Id.
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concludes that a disabled individual's demand for society to accept him as he is
and make certain accommodations necessary for that acceptance is viewed by the
society as a whole, and by the judicial system in particular, as "narcissistic selfinflation."34 When special workplace accommodations are required and
demanded by disabled employees, "judges [have seen] the disabled plaintiff as
first and foremost narcissistic and egoistic."35 As a result, this tendency has
"eviscerate[d] any notion that stigma can ever be lessoned or neutralized because
employers would be forced to such lengths of bending over backwards [to
accommodate an employee's disability] that they would end up virtually upside
down.
36
Who, then, should do the bending-the deviant, through arduous covering,
or the employer, through accommodating the deviant's assertion that it is not he
who is "wrong" but society?
II.
COURTS' TREATMENT OF HOMOSEXUALS WHO REFUSE TO COVER
A.
Homosexuality, Covering, and the "Realm Where Status and
Expression are Manifestations of One Another"37
1. The Mutability of Homosexuality
In his article entitled, AssimilationistBias in EqualProtection:The Visibility
Presumptionand the Case of 'Don 'tAsk Don't Tell,38 Kenji Yoshino argues that
the Supreme Court's extension of heightened scrutiny to classifications made on
the basis of immutable, visible39 characteristics-race, sex, alienage, national
origin, and illegitimacy-is pernicious. Basing strict scrutiny on immutable,
visible characteristics creates an incentive for groups with mutable, invisible
characteristics to assimilate into the political mainstream when faced with
34.
LENNARD DAVIS, BENDING OVER BACKWARDS DISABILITY, DISMODERNISM AND OTHER
DIFFICULT POSITIONS 124 (2002).
35.
36.
Id.
Id. at 136.
37. James P. Madigan, Questioning The Coercive Effect Of Self-Identifying Speech, 87 IOWA L.
REV. 75, 79 (2001) [hereinafter "Madigan"].
38. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the
Case of 'Don'tAsk, Don't Tell.' 108 YALE L.J. 485 (1998) [hereinafter "Yoshino, AssimilationistBias"].
39.
Yoshino notes that "the distinction between social and corporeal visibility is retained not
because it is accurate, but because it accurately describes the intuition of the courts. There is no such
thing as a purely biologically visible trait, for visibility is always relational, requiring a performer and an
observer. Whether a trait is visible will thus depend not only on the trait but also on the "decoding
capacity of the audience," which in turn will depend on the social context .... Visibility, like
immutability, is therefore always socially determined." Id. at 498.
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FROM HESTER PRYANE TO CRYSTAL CHAMBERS
discriminatory legislation.4 °
The underlying rationale for applying strict scrutiny to classifications based
on immutable characteristics is that these groups are visibly marked as different
and are "locked into" a status, and thus cannot ever fully assimilate. The
invidious corollary to this is that those groups that can blend in are expected to do
so; groups with mutable characteristics and identities who have faced a history of
discrimination can engage in self-help through assimilation-masking, passing,
hiding, and covering to evade discrimination. As a result, the courts, when faced
with discrimination based on mutable characteristics, have "empathy failure."'4
Yoshino references Leo Bersani's argument that homophobia is energized
precisely because of the perceived mutability of sexual orientation.42 For
Bersani, the perceived immutability of race means that "not even racists could
ever fear that blacks will seduce them into becoming black ... [however] to let
gays be open about their gayness, to give them equal rights, to allow them to say
who they are and what they want, is to risk being recruited." 3 As if by
suggestion alone, or like a highly contagious disease, homosexuality may pass
from the non-covering homosexual to the innocent bystander--or the student in
a classroom. "Here again," writes Yoshino, "the empathy failure that is
homophobia seems to be excited, not quieted, by the perceived mutability of the
underlying trait." '
2.
Courts' Treatment of Covering and Non-Covering Homosexuals
Because sexual orientation is mutable, or easily "covered," cases focused on
the expression of a litigant's homosexuality are an excellent lens through which
to view the courts' treatment of deviants who cover versus deviants who refuse to
cover and the manner with which the courts justify their decisions.45 The
following set of cases illustrate how courts' decisions have increasingly come to
focus on the public behavior of homosexuals as grounds for ruling against their
40.
Id. at 490.
41. Id. at 512. Yoshino explains: "The perception that immutable groups cannot change [their
outward] identity gives an air of futility to social attempts to make them do so. That perception also
generates the related normative claim that it is morally abhorrent to penalize persons for what they
cannot control. Immutability thus garners immunity even for conditions that would be condemned if
mutable." Id. at 516.
42.
Id. at 514 (citing LEO BERSANI, HOMOS 27 (1995)).
43. Yoshino, Assimilationist Bias, supranote 38, at 514.
44. Id.
45. In his exploration of cases involving employment discrimination against homosexuals, Yoshino
discovered "[i]nstance after instance in which legal actors predicated an entitlement on whether a gay or lesbian
individual covered. Individuals whose homosexuality, even if avowed, was 'discreet,' or 'private,' kept their jobs
or children. Those whose homosexuality was 'open and notorious,' or 'flagrant,' were not so fortunate.
Distinctions regarding coveting detected in the cultural sphere recurred with a vengeance in the legal one."
Yoshino, Covering, supra note 29, at 850.
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discrimination claims.
In Norton v. Macy,46 the D.C. Circuit ruled that the Civil Service
Commission could not fire an employee merely because he was homosexual, as
due process mandates that a dismissal not be "arbitrary and capricious," but
rather "made for cause."4 7 Because this "cause" must have a "rational basis," the
Commission needed to show that Norton's conduct would impair "efficiency of
'
This case marked a shift in the courts' reasoning: previously, for an
service."48
employee to keep his job, he was required to "pass" as straight; thereafter, mere
covering was sufficient. Yoshino writes:
Under Norton, [the statement that one was homosexual], standing alone,
was insufficient. The historical line between the "good" heterosexual
employee and the "bad" homosexual employee had shifted, now
distinguishing between the "good" heterosexual or covering homosexual
employee on the one hand and the "bad" non-covering homosexual
employee on the other. ... The public employer is irrational when
a covering homosexual, but rational when embarrassed by a
embarrassed by
49
flaunting one.
Two cases, Singer v. United States Civil Service Commission" and
McConnell v. Anderson,5 further demonstrate this point.
In Singer, plaintiff John Singer had informed his employer, the Equal
Employment Opportunity Commission (EEOC), that he was a homosexual when
he applied and was hired for a clerical job in 1971. Yet, less than a year after
being hired, Singer was fired on the grounds that he had engaged in "immoral
and notoriously disgraceful conduct."52 As it issued his dismissal, the EEOC
declared: "Your activities in these matters are those of an advocate for a socially
repugnant concept."53 For the EEOC, the egregiousness of his conduct was
based less on his homosexuality and more on the grounds that Singer "openly
profess[ed] that [he was] homosexual and... ha[s] received wide-spread
54
publicity in this respect in at least two states."
In finding for the EEOC, the Ninth Circuit applied the balancing test from
Pickering v. Board of Education of Township High School District 205"5 as a
means to "arrive at the proper balance between the interests of the employee, as a
citizen, and the interest of the Government, as an employer, 'in promoting the
46.
417 F.2d 1161 (D.C. Cir. 1969).
47.
Id. at 1164.
48.
Yoshino, Covering, supra note 29, at 853.
49.
ld. at 851.
50.
530 F.2d 247 (9th Cir. 1976).
51.
451 F.2d 193 (8thCir. 1971).
52.
Singer v. United States Civil Serv. Comm'n, 530 F.2d 247, 250 (9th Cir. 1976).
53.
Id. at 250.
54.
Id.
55.
391 U.S. 563 (1968).
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
efficiency of the public service it performs through its employees,"' 56 and found
that the Commission could properly conclude that the interest of the government
"in promoting the efficiency of the public service" outweighed Singer's due
process and equal protection interests." The court concluded that Singer "was
not terminated because of his status as a homosexual or because of any private
acts of sexual preference."58 Rather, it found that the EEOC had a rational basis
for firing Singer-namely, his practice of "openly and publicly flaunting his
homosexual way of life and indicating further continuance of such activities
while identifying himself as a member of a federal agency."59 The court
reasoned:
In determining that [Singer's] employment will not promote the efficiency
of the service, the Commission has considered such pertinent factors as the
potential disruption of service efficiency because of the possible revulsion
of other employees to homosexual conduct and/or their apprehension of
homosexual advances and solicitations; the hazard that the prestige and
authority of a Government position will be used to foster homosexual
activity, particularly among youth; the possible use of Government funds
and authority in furtherance of conduct offensive to the mores and law of
our society; and the possible embarrassment to, and
loss of public
60
confidence in, your agency and the Federalcivil service.
The case of McConnell v. Anderson is similar. In May, 1970, the University
of Minnesota offered the position of "University Librarian" to James Michael
McConnell, a homosexual man. In the period between when the University
offered McConnell the job and the date he was to begin working, McConnell and
his male partner appeared at the county clerk's office and made a formal
application for a marriage license. The local press reported on the event,
resulting in four separate news reports. In reaction to both McConnell's actions
and the media coverage, the University Board's Faculty, Staff and Student
Affairs Committee voted to revoke McConnell's proposed appointment. Soon
thereafter, the University contacted McConnell and informed him that as a result
of his actions, it was withdrawing the offer of employment.6
In response, McConnell filed suit, claiming equal protection and due
process violations. His complaint asserted that the Board's resolution to revoke
its offer of employment was premised on the fact of his homosexuality and his
intent to publicly profess his belief "that homosexuals are entitled to privileges
equal to those afforded heterosexuals." 62 The trial court entered judgment for
56.
391 U.S.
57.
58.
59.
60.
61.
62.
Singer, 530 F.2d at 256 (citing Pickering v. Bd. of Educ. of Township High Sch. Dist. 205,
563 (1968)).
530 F.2d at 256.
Id.at 255.
Id.
Id. at 250 (emphasis added).
McConnell v. Anderson, 451 F.2d 193, 195 (8th Cir. 1971).
Id. at 194.
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McConnell and enjoined the Board from refusing to employ him "solely
because... he is a homosexual and that thereby 'his personal conduct, as
presented in the public and University news media, is not consistent with the best
interest of the University."'6 3
On appeal, the Eighth Circuit found that the board "reasonably could
conclude that the appointment would not be consistent with the best interests of
the University."' The court rejected McConnell's reliance on precedent that
used balancing tests to weigh government employees' right to freedom of
expression against the State's interest in promoting efficient public services,65
and instead based its decision upon its own general conviction that:
This is not a case involving mere homosexual propensities on the part of a
prospective employee. Neither is it a case in which an applicant is excluded
from employment because of a desire clandestinely to pursue homosexual
conduct. It is, instead, a case in which something more than remunerative
employment is sought; a case in which the applicant seeks employment on
his own terms, a case in which the prospective employee demands, as
shown both by the allegations of the complaint and by the marriage license
incident as well, the right to pursue an activist role in implementing his
unconventional ideas concerning the societal status to be accorded
homosexuals and, thereby, to foist tacit approval of this socially repugnant
concept upon his employer, who is, in this instance, an institution of higher
learning.66
The court went on to assert that it ."know[s] of no constitutional fiat or
binding principle of decisional law which requires an employer to accede to such
to categorize the Board's
extravagant demands" and was therefore "unable fairly
67
action here as arbitrary, unreasonable or capricious."
In Singer and McConnell, the courts' reasoning is based on the plaintiffs'
public performance of their sexual orientation. Both Singer and McConnell not
only refused to cover, but also made public gestures of love towards other men
and personally advocated for increased rights for homosexuals. The courts
construed such public performances of deviant identity, as actions that
"flaunted," "broadcast," "foisted" and "demanded." Their actions were an
imposition of ideals and philosophies that created a sense of "revulsion," and
were "repugnant" and "offensive to the mores of society." The courts felt that the
men were asking for a privilege above and beyond the freedom to "clandestinely
pursue homosexual conduct," which at the time was considered the "upper limit"
of homosexual liberty. By taking their sexual orientation out of appropriately
63. McConnell v. Anderson, 316 F. Supp. 809, 811 (D. Minn. 1970)(quoting Minnesota Board of
Regents recommendation to deny McConnell an appointment).
64. McConnell, 451 F.2d at 196.
65. Id. at 196 (critiquing Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563
(1968) and Tinker v. Des Moines Ind. School Dist., 393 U.S. 503, (1969)).
66. McConnell v. Anderson, 451 F.2d 193, 196 (emphasis added).
67. Id.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
"clandestine" spaces and bringing it into the company cafeteria, the office, and
the public media, these men were transgressing boundaries that they should not
have transgressed. And as a result, they were forcing "tacit approval" onto the
organizations that employed or were about the employ them.
B.
Coerced Speech and Expressive Association
At risk for the courts in Singer and McConnell is public opinion of the
defendant organizations. By "flaunting" their homosexual identities in public,
Singer and McConnell endangered the public perception of their employers by
creating embarrassment and the possible loss of public confidence in the eyes of
society. The central thrust of both these decisions is that if these organizations
had continued to employ the plaintiffs, it would have created the impression that
they approved of and supported the men's identities and actions. McConnell's
and Singer's public homosexual actions, if not responded to with negative
employment consequences, would have coerced tacit approval upon the
defendant employers.
This idea is made explicit in the case of Boy Scouts of America v. Dale.68
Dale is not an employment case, but rather a case about expressive association.
However, as in McConnell and Singer, the arguments in the Boy Scouts' brief
and oral arguments, which were adopted without appropriate investigation by the
Supreme Court, hinge on the public performanceof homosexuality. As such, all
three cases turn on the right of "expressive association."
James Dale had been involved with the Boy Scouts of America since age
eight. He began as a Cub Scout, became a Boy Scout, and, in his later
adolescence, was promoted to Eagle Scout, a great honor within the organization.
After he graduated from high school, he remained involved with the Boy Scouts
by serving as an assistant scoutmaster for a local troop near Rutgers University,
where he attended college. However, he came out as gay during college,
eventually becoming co-president of the Rutgers Lesbian/Gay Alliance. In July
1990, a local newspaper published an article which included a statement by Dale
concerning his advocacy of homosexual teenagers' need for gay role models and
identified him as a member of the Lesbian/Gay Alliance. Within weeks, Dale
received a letter from the Boy Scouts local council revoking his adult
membership. When Dale inquired as to the reason for his dismissal, he was
informed that "the Boy Scouts specifically forbids membership to
homosexuals."69 Dale filed suit, alleging that by revoking his membership on the
grounds of his sexual orientation, the Boy Scouts had violated New Jersey's
public accommodations statute that specifically prohibits discrimination against
homosexuals.7 °
68.
Boy Scouts of Am. v. Dale, 530 U.S. 640(2000).
69.
70.
Id. at 645.
Id.
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The Supreme Court ruled that the Boy Scouts' right to engage in expressive
association overrode Dale's right not to be discriminated against, finding that the
forced inclusion of Dale would significantly affect the Boy Scouts' ability to
advocate its viewpoints to the public. "' The Court began its analysis by
reviewing relevant precedent:
[]mplicit in the right to engage in activities protected by the First
Amendment is "acorresponding right to associate with others in pursuit of
a wide variety of political, social, economic, educational religious and
cultural ends..." This right is crucial in preventing the majority from
imposing its views on groups that would rather express other, perhaps
Government actions that may unconstitutionally
unpopular, ideas...
burden that freedom may take many forms, one of which is intrusion into
internal structure, or affairs of an association" like a "regulation that forces
the group to accept members it doesn't desire. . ." Forcing a group to accept
certain members may impair the ability of that group to express those
views, and only those views, that it intends to express. Thus, 'freedom of
association plainly presupposes a freedom not to associate"......
The
forced inclusion of an unwanted person in a group infringes the group's
freedom of expressive association if the presence of that person affects in a
way the group's ability to advocate private or public
significant
But the freedom of expressive association, like many
viewpoints...
freedoms, is not absolute. We have held that the freedom could be
overridden by "regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved through
means significantly less restrictive of associational freedoms. 'T
Yet the Court went on to assert that an analysis of the facts overrode New
Jersey's compelling interest in preventing discrimination against homosexuals.
The Court found that the Boy Scout's general mission--"to instill values in
young people"--was clear, and that "[t]he Boy Scouts seek to instill these values
by having its adult leaders spend time with the youth members... [during which]
the scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts'
values-both expressly and by example. 73 On the basis of these findings, the
Court concluded that the Boy Scouts' assertion that homosexual conduct was
inconsistent with values embodied in Scout Oath and Law was entitled to
deference, for purposes of evaluating their claim that forced inclusion of
homosexual assistant scoutmaster would violate their right of expressive
71. The Boy Scouts argued that homosexuality was contrary to the organization's mission
statement and purpose. The Boy Scouts' formal position statement regarding homosexuality states: "We
believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be
morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do
not provide a desirable role model for Scouts." The Scouts argued that as Dale's homosexuality rendered
him neither "morally straight" nor "clean," he was not an appropriate Boy Scouts member. Id. at 649650, 652.
72. Id. at 647-648 (emphasis added) (internal citations omitted).
73. Id. at 649.
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FROM HESTER PRYNNE TO CRYSTAL CH4MBERS
association.7 4 The majority reasoned:
As we give deference to an association's assertions regarding the nature of
its expression, we must also give deference to an association's view of what
would impair its expression ...That is not to say that an expressive
association can erect a shield against antidiscrimination laws simply by
asserting that mere acceptance of a member from a particular group would
impair its message. But ...Dale's presence in the Boy Scouts would, at the
very least, force the organization to send a message, both to the youth
members and the world, that the Boy Scouts accepts homosexual conduct as
a legitimateform of behavior ...The presence of an avowed homosexual
and gay rights activist in an assistant scoutmaster's uniform sends a
distinctly different message from the presence of a heterosexual assistant
scoutmaster who is on record as disagreeing with Boy Scouts policy. The
Boy Scouts has
a First Amendment right to choose to send one message but
75
not the other.
The Court's opinion was based on the premise that Dale's continued
inclusion in the Boy Scouts would unfairly "force" the organization to send the
message that they approve of his conduct/identity. Consequently, it found that
the Boy Scouts' freedom of association should override New Jersey's compelling
interest in ending discrimination against homosexuals.
Although the cases were argued on widely different legal grounds, the
courts' underlying analysis in Dale, McConnell, and Singer is identical: when an
individual's deviant behavior and identity is at odds with the values and message
of an organization, institution, or group, the organization has the right to silence
it. As "freedom of association plainly presupposes a freedom not to associate,"76
the right of free speech presupposes the right not to speak. James Madigan
writes: '7
The Scouts' contended, 'The very service of an openly gay person as a role
model would convey a message with which Boy Scouting does not wish to
be associated ....
So it is with coerced speech complaints (such as the
Scouts') based on an unwelcome person's status or reputation rather than
his speech: the content of the [group's] message is wholly within the control
of the person or group complaining ...Put abstractly, he exists in a realm
where status and expression seem to be manifestations of one another.
From the Scouts' perspective, James Dale embodies the notion that 'gay
is good,' if only because: (1) he is gay and (2) he participates in an
organization whose members purport to be good. The question left open by
the Court ...is whether a person does in fact embody a message.
By coming out, Dale was not just identifying himself, he was taking
74. Id.
at651-52.
75. Id. at 653, 656 (emphasis added) (internal citations omitted),
76. Id.
at 647.
77.
See Madigan, supra note 37.
78. Id. at 80, 88, 94
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homosexual action. He was refusing to cover. Like Singer and McConnell, Dale
made public statements identifying himself not only as gay, but as a gay rights
advocate-in his case, for the need for more gay role models. Dale's job as an
assistant Scoutmaster was to be a role model for young boys, and in this capacity
he was personally embodying his own message. Because the Boy Scouts, like
the military, 79 do not "make an effort to discover the sexual orientation of any
person, ' a member's refusal to cover or pass is an affinnative act and selfidentifying speech is homosexual conduct.
At oral argument, counsel for the Boy Scouts, analogizing the situation to
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,81
claimed that Dale "put a banner around his neck" when his sexual orientation
became known to the Scouts. By coming out as gay and hoping to remain a Boy
Scout member, Dale had asked the Boy Scouts to take that banner and stretch it
around the whole organization.
For the Boy Scouts, Dale's public self-identification was an act of forcing
"tacit acceptance" upon the entire organization. In Singer, McConnell, and Dale,
the courts have remained adamant that such a request is unacceptable, and as in
Hurley, their decisions "boil down to the choice of a speaker not to propound a
particular point of view, and that choice is presumed to lie beyond the
government's power to control." 2
Taylor Flynne argues that "by re-characterizing the Boy Scouts' exclusion
of Dale as based on his expression rather than on his status," 83 the majority
makes discrimination a protected form of expression. 84 The dissent in Dale
asserts this clearly, stating, "Surely there are instances in which an organization
that truly aims to foster a belief at odds with the purposes of a State's
79. Similarly, the military's "Don't Ask, Don't Tell" policy, states, at 10 U.S.C. § 654 (15)(b)
(2004): "A member of the armed forces will be separated from the armed forces under regulations
prescribed by the Secretary of Defense if one or more of the following findings is made ... (1) That a
member has engaged in, attempted to engage in, or solicited another to engage in a homosexual
act.. .(2) That the member has stated that he or she is a homosexual or bisexual, or words to that
effect.. (3) That the member has married or attempted to marry a person known to be of the same
biological sex.
80. See Madigan, supra note 37 (citing Petitioner's Brief at 23-24, Boy Scouts of Am. v. Dale
(No. 99-699)).
81. 515 U.S. 557 (1995). In this case, the Irish-American Gay, Lesbian and Bisexual Group of
Boston sued the organizers of the Boston St. Patrick's Day Parade for excluding them from marching in
the parade on the grounds that their message was inconsistent with the organizers' beliefs. The Court
ruled that "[tihe parade organizers.. may object to unqualified social acceptance of gays and
lesbians.. .but whatever their reason, it boils down to the choice of a speaker not to propound a
particular point of view, and that choice is presumed to lie beyond the government's power to control."
Id. at 575.
82. Id. at 575.
83. Taylor Flynne, Don't Ask Us to Explain Ourselves, Don't Tell Us What to Do: The Boy
Scouts' Exclusion of Gay Members and the Necessity of Independent Judicial Review, 12 STAN. L. &
PoL'Y REV. 87, 92-93 (2001).
84. Id.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
antidiscrimination laws will have a First Amendment right to association that
precludes forced compliance with those laws. But that right is not a freedom to
discriminate at will, nor is it a right to maintain an exclusionary membership
policy simply out of fear of what the public reaction would be if the group's
membership were opened up."85 For the dissent, organizations should not use
first amendment claims to veil discriminatory policies. Moreover, when an
organization's declared public message is served by explicit discrimination, it is
inappropriate for courts to acceptance that message without question. Stevens
writes:
If this Court were to defer to whatever position an organization is prepared
to assert in its briefs, there would be no way to mark the proper boundary
between genuine exercises of the right to associate, on the one hand, and
sham claims that are simply attempts to insulate nonexpressive private
discrimination, on the other hand. Shielding a litigant's claim from judicial
scrutiny would, in turn, render civil rights legislation a nullity, and turn this
important constitutional right into a farce.86
Stevens concludes that "unless one is prepared to turn the right to associate
into a free pass out of antidiscrimination laws,"87 courts must make independent
investigations into the validity of an organization's need to take discriminatory
actions when espousing its message.
In sum, the decisions in Singer, McConnell and Dale make clear that it is
less a homosexual's identity that is problematic, and more the public actions he
takes to express that identity. The holdings clearly establish that such actions,
even if made in no connection to an employee's/member's organization, are valid
grounds for dismissal/exclusion, as they will be interpreted by the courts as
coercive acts of "forced speech" that impede an organization's ability to transmit
its mission to the public. By ruling in this manner, courts have created a body of
case law that, as the dissent in Dale warned, establishes First Amendment rights
of association as a legitimate justification for discrimination.
III.
FROM HESTER PRYNNE TO CRYSTAL CHAMBERS: OUT-OF-WEDLOCK
PREGNANCY AND APPROPRIATE ROLE MODELS
The moral outrage generated by women having children out of wedlock is
not new. Hester Prynne, the much maligned heroine of The ScarletLetter, was
the colonial foremother to the myriad women who have been punished for
physically representing-with the un-concealable outward protrusion of their
abdomens-the immoral behavior of engaging in sexual intercourse outside of
marriage.
85.
86.
87.
530 U.S. 640 at 686.
Id. at 687.
Idat688.
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Hester Prynne was branded with a large "A" and cast from society. Today,
employers occasionally engage in a similar kind of banishment, firing their
unwed pregnant employees or forcing them to take a leave of absence for the
duration of their pregnancy. In the following discussion, I show how the
theoretical and legal constructs explored above apply to the courts' rulings on
employment discrimination claims stemming from actions taken in response to
out-of-wedlock pregnancy. Common to all these cases are individuals who
are seen as declining voluntarily and openly to accept the social place
accorded them, and who act irregularly and somewhat rebelliously in
connection with our basic institutions-the family, the age-grade system,
the stereotyped role-division between the sexes, legitimate full-time
employment involving maintenance of a single governmentally ratified
personal identity, and segregation by race and class... These are the folk
who are considered to be engaged in some kind of collective denial of the
social order. They are perceived as failing to use available opportunity for
advancement in the various approved runways of society....
Social
88
deviants, as defined, flaunt their refusal to accept their place.
Like homosexuality, extra-marital sexual behavior is mutable or
concealable until a woman becomes visibly pregnant. Becoming visibly
pregnant, therefore, is analogous to the act of "coming out;" pregnancy forces
private "deviant" behavior into the public sphere. In this way, both "identities"
are action-based. Like the homosexual who has publicly self-identified, the
pregnant woman has come to personally embody her actions; she is no longer
privately having sex, she has become "A Pregnant, Unwed Woman." Her
private actions become her public identity.
While homosexuality is not a protected trait under Title VII of the Civil
Rights Act, pregnancy is. Yet in both sets of cases, the essential rhetoric of the
courts' decisions is identical: those who refuse to cover coerce their employers to
appear as though they accept and support such behavior.
A.
The Anti-DiscriminationLegal Framework
Title VII of the Civil Rights Act of 1964 89 provides that: "It shall be an
unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
88.
GOFFMAN, supra note 24, at 143-45.
89.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (2004).
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FROM HESTER PRYNNE TO CR YSTAL CHAMBERS
status as an employee, 90because of such individual's race, color, religion,
sex, or national origin."
Title VII was amended in 1978 to specifically include pregnancy as a
protected status. Known as the "Pregnancy Discrimination Act," the amendment
includes discrimination based on pregnancy within the definition of
discrimination "based on sex." 9'
However, legislators built into the 1964 Civil Rights Act various
mechanisms for balancing employers' rights against the rights of
employees.
The affirmative defenses of "Bona Fide Occupational
Qualification" and "Business Necessity," as well as the chance for
employers to articulate a "Legitimate Non-Discriminatory Reason" for their
employment action, are meant to safeguard employers' prerogative to
establish the rules and conditions of their organization.
The "Legitimate Non-Discriminatory Reason" excuse is a procedural step
in litigation centered on a plaintiff's claim of disparate treatment. After the
plaintiff has met the burden of proving a prima facie case of discriminatory
treatment, the employer must articulate a legitimate, non-discriminatory reason
as an affirmative defense. Once the employer has made this showing, the burden
then shifts back to the plaintiff to prove that the articulated legitimate,
nondiscriminatory reason was merely pretextual, a false excuse of the
discriminatory treatment.
For claims of facially discriminatory employment practices (in which an
employee or potential employee was fired or not hired explicitly because of a
personal characteristic or trait) after the plaintiff has made a prima facie showing
of discrimination under Title VII, the employer must articulate why the
characteristic upon which it is discriminating is a bona fide occupational
qualification. 92 The bona fide occupational qualification standard, as articulated
in Dothardv. Rawlinson93 , requires that the contested business practice be related
to "the essence of the business."94
The Court has construed the bona fide
occupational qualification defense to apply to situations when the "central
90. 42. U.S.C. § 2002e-2(a)(l-2).
91. The Pregnancy Discrimination Act reads: "The terms "because of sex" or "on the basis of sex"
include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes, including receipt of benefits under fringe benefit
programs, as other persons not so affected but similar in their ability or inability to work, and nothing in
section 2000e-2(h) of this title shall be interpreted to permit otherwise. 42 U.S.C. §200e (k).
92. The "Bona Fide Occupational Qualification" exception, 42 U.S.C. § 2000e-2(e) (1982)
mandates that: "Notwithstanding any other provision of this subchapter, it shall not be an unlawful
employment practice for an employer to hire and employ employees... on the basis of his religion, sex,
or national origin in those certain instances where religion, sex, or national origin is a bona fide
occupational qualification reasonably necessary to the normal operation of that particular business or
enterprise .... 42 U.S.C. § 2000e-2(e).
93.
433 U.S. 321 (1977).
94.
Id. at 332-337.
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mission of the employer's business"95 would be "undermined" without the
challenged employment practice.96 Moreover, the Court in Dothardruled that
the practice must be critical to the "safe and efficient performance" of the job;97
lower courts have held that a bona fide occupational qualification only applies
when "safe and efficient performance of the job would [not] be possible without
the challenged employment practice.98 In the case of UA W v. Johnson Controls,
the Supreme Court defined the term "occupational" as indicating "objective,
verifiable requirements [that] concern job-related skills and aptitudes." 99 In
Johnson Controls, the Court held that a rule's beneficent purpose is irrelevant;
the bona fide occupational qualification must affect the employees' ability to do
their job. Significantly, while a bona fide occupational qualification cannot be
based on customer preference,' 0 role modeling may be an appropriate bona fide
occupational qualification"0 ' in specific therapeutic situations, as in Healey v.
Southwood PsychiatricHospital.
For claims that an employment practice has a disparate impact on a
particular protected group, employers can rebut the plaintiffis prima facie case
with a showing of business necessity. A business necessity defense can be
established if the employer can prove that the challenged employment practice
has "a manifest relationship to the employment in question."'02 If the employer
successfully accomplishes this, the burden then shifts back to the plaintiff to
establish a less discriminatory alternative. The business necessity standard was
defined in Griggs v. Duke Power Company.03 In Griggs, the Supreme Court
held that regardless of employer intent, if an employment practice disparately
affects members of a protected group, the practice is prohibited unless it can be
proven to be "related to job performance."'" 4 Since then, this has been
interpreted to mean that a business practice that has a disparate impact may be
legitimated by business necessity if it is "necessary to safe and efficient job
performance"'"' or is "significantly related to business goals of safety and
efficiency,"'0 6 and affects "skills necessary to effective performance on the
95. Western Airlines, Inc. v.Criswell, 472 U.S. 400 (1985).
96.
Dothard,433 U.S. at 333.
97.
Id. at 332.
98. Diaz v. Pan Am. World Airways, 442 F.2d 385 (5th Cir. 1971); Weeks v. South. Bell Tel.& Tel. Co.,
408 F.2d 228, 235 (5th Cir. 1969).
99. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson
Controls, 499 U.S. 187 (1991).
100.
Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981).
101.
Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132-133 (3d Cir. 1996).
102.
Dothard v. Rawlinson, 433 U.S. 321 (1977); Griggs v. Duke Power Co., 401 U.S. 424 (1971).
103.
Griggs,401 U.S. at 431.
104. Id.
105.
106.
Dothard, 433 U.S. at 332; Griggs, 401 U.S. at431.
New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 (1979).
2004
job.'
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07
B.
Courts' Treatment of Unwed Mothers in the Workforce
In light of these exceptions, an inquiry into the various situations in which
courts have ruled that firing an unmarried woman who has become pregnant is a
business necessity, bona fide occupational qualification, or legitimate
nondiscriminatory reason illuminates how courts' notions of normative morality
are used to justify discriminatory employment actions. By far the most famous
of these cases is Chambers v. Omaha Girl's Club."8 I join an analysis of this
case with three similar cases, Hollenbaugh v. Carnegie Free Library, °9 Harvey
v. Young Women 's ChristianAssociation,"' and Boyd v. Harding Academy of
Memphis."' In these cases, the courts uphold Title VII violations by either 1)
eschewing a thorough investigation of the employers' defenses in favor of
discriminatory reasoning, 2) using the flexibility inherent in role model rationales
and in the defenses' definitions of "the essence of the business" as a conduit for
arguing that the plaintiffs' behavior was inappropriate and worthy of sanction, or
3) using coerced speech claims to legitimate firing an employee for her private
choices, simply because the defendant sees those private choices as transmitting a
public message of its own morality.
I then contrast these decisions with three cases in which courts refused to
accept an employer's proffered affirmative defense: Ponton v. Newport News
School Board,"2 Andrews v. Drew Municipal Separate School District,' and
Vigars v. Valley Christian Center of Dublin, CA." 4 Through an investigation
into these cases, I show how courts have condoned the behavior of women who
have expressly tried to cover for their status as unwed mothers, again using
reasoning grounded in coerced speech and role model rationales.
All seven cases involve women who became pregnant while unmarried. All
seven also involve women who work with children in the capacity of teacher,
mentor, role model, or children's librarian. A closer look at why courts protected
some of these women and not others points to a subtle but insidious moral
concern that goes beyond condemnation of extra-marital sex to a deeper fear of
societal moral degradation. I argue that in deciding these cases, courts were
primarily concerned with the appearance of morality and the women's silent
complicity in the organizations' maintenance of a morally upright public image.
107.
Connecticut v. Teal, 457 U.S. 440 (1982).
108.
834 F. 2d 697 (8th Cir. 1987).
109.
436 F. Supp. 1328 (D.C. Pa. 1977).
110.
533 F. Supp. 949 (D.C.N.C. 1982).
111.
88F. 3d410(6thCir. 1996).
112.
632 F. Supp. 1056 (E.D. Va. 1986).
113,
507F2d611 (5thCir. 1975).
114.
805 F. Supp. 802 (N.D. Ca. 1992).
504
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This concern has created a pernicious body of precedent that has been used to
assert that organizational rights of expressive association should trump a
woman's Title VII right to be free from discriminatory employment actions when
pregnant.
1. "Sexual Libertines ":Deviants Who Refuse to Cover...
Hollenbaugh v. Carnegie Free Library1 5 set the stage for the following
three cases. The issue for the court was not expressly about pregnancy, as Title
VII had not yet been amended to include that protection, but rather, the case
turned on the employer's concern with the public's perception of its continued
employment of the plaintiffs. As in McConnell, Singer, and Dale, the court
unquestioningly deferred to that concern. I include it in this section because it
explicitly took the courts' rationale in the homosexuality cases described above
and applied it to a pregnancy out-of-wedlock situation.
In this case, Ms. Hollenbaugh and Mr. Philburn both worked for the
Carnegie Town Library, she as a librarian and he as a custodian, when they
entered into an extra-marital affair. Ms. Hollenbaugh was divorced, but Mr.
Philburn was married and lived with his wife. When Ms. Hollenbaugh became
pregnant she requested a leave of absence from the library, and was granted it.
The library did not comment on the relationship or take any action until, after the
birth of their child, Mr. Philburn left his wife and began living with Ms.
Hollenbaugh. Then, the library's Board of Trustees, in response to "complaints
from community members" who were aware of the affair, attempted to dissuade
plaintiffs from continuing to live together, threatening them with termination.1 6
Mr. Philburn and Ms. Hollenbaugh refused. The Board of Trustees then changed
their tactic, indicating to the couple that if they "normalized" ' 17 their relationship
through marriage, the Board would let them keep their jobs. They again refused,
and, as a result, were fired from their respective positions at the library. Ms.
Hollenbaugh and Mr. Philburn sued, alleging that their dismissals violated their
constitutional rights of privacy and equal protection as there was no rational
connection between their private life and their professional ability to perform
their jobs.
The court prefaced its opinion with a caveat, conceding that "[i]t is not the
Court's function to impose its views of morality on the defendant Board of
Trustees.... [rather, its role] is to determine only if the discharges of the
plaintiffs violated the law." ' 8 A review of the evidence presented at trial led the
court to suggest that "the sole reason for their discharges was that they were
115.
116.
117.
118.
436 F. Supp. 1328, 1329 (W.D. Pa. 1977).
Id.at 1329.
Id.
Id. at 1332.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
living together in 'open adultery."" 9 Yet, despite its caveat, the court ruled that
the Board of Trustees' decision to terminate Hollenbaugh's and Philburn's
employment contracts was warranted.
The court deemed Hollenbaugh's daily interaction with children to be a
relevant factor in the Board's decision. That she was "dealing with children"
seemed particularly unsavory to the court-as if by merely helping children to
locate books she would somehow be exerting a corrupting or inappropriate
influence upon them. Furthermore, the court seemed to be rationalizing the
Board's decision in light of community complaints. The court concluded that
"[w]here plaintiffs are employed in a library and have direct contact with the
community on a regular basis, the Court is not willing to call the Board's decision
to dismiss an arbitrary, unreasonable, or capricious one. Citing McConnell, the
court analogized that even though the plaintiffs "have not attempted to force their
life style on the community" the community is nevertheless "well aware of their
living arrangement" and thus, "[1]ike the Board of Regents in McConnell,
therefore, the defendants could reasonably conclude that by retaining plaintiffs as
employees they would be giving "tacit approval" to their conduct. 2 °The court
then ruled that that the library's discharge of the couple on the grounds that they
were living together in "open adultery" did not violate their constitutional right to
privacy or equal protection.
While Hollenbaugh's "out-of-wedlock" pregnancy was one of various
factors considered outrageous by the Board (whose primary concern seemed to
be the couple's unwed cohabitation) the court's analytical focus is similar to the
courts' treatment of the homosexuality cases explained above: because the
couple refused to "normalize" their relationship through marriage, or eliminate
any outward appearance of aberrant behavior by ceasing to live together, the
library had no choice but to fire them. Indeed, the court in Hollenbaugh found
that the plaintiffs' continued employment at the library would have created the
impression in the eyes of the community that the Board of Trustees condoned the
behavior; the Board's inaction would have been an affirmative expression of
approval. By refusing to hide their adultery, the couple was forcing their beliefs
upon the library as an institution, in effect tarnishing the library's upstanding
reputation in the community through their personal decisions. The court's
decision indicated that the Board of Trustees had no choice but to fire them or
become implicated in their immoral behavior.
Like the men who were fired for publicly acting out their sexual orientation,
Hollenbaugh was fired for openly-and with little concern for public opinionhaving a child and living with a man to whom she was not married. For the
courts, the very fact that these plaintiffs were brazenly expressing their "deviant"
identities and lifestyles was grounds enough to terminate their employment in
119.
120.
Id. at 1330-1331.
Id. at 1333.
506
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government/community institutions. The holding of Hollenbaugh was cited as
precedent in support of the courts' decisions in the following three cases.
The court in Chambers v. Omaha Girls Club'21 protected an employer's
discriminatory policy by maintaining that its "role model rule" was a bona fide
occupational qualification. Crystal Chambers was a young, single, African
American woman employed at the Omaha Girls Club as an arts and crafts
instructor.' 22 The Omaha Girls Club is a private, non-profit corporation that
provides classes and programs designed to "assist young girls between the ages
of eight and eighteen to maximize their life opportunities."'2 3
Toward these ends, the Club explicitly trained its staff members to "act as
role models for the girls, with the intent that the girls will seek to emulate their
behavior.' 1 24 This strategy was one of the hallmarks of the Club's operations,
and all staff/club member interactions were specifically structured so as to
provide positive role modeling. As a matter of policy, the Club required its staff
to be committed to the Club's values so as to convey credibly those values to
Club members. The club's "role model rule" expressly banned single parent
pregnancies among its employees in conjunction with its goal of reducing
teenage pregnancy among Club members.' 5 The staff rules explicitly stated:
"The following are not permitted and such acts may result in immediate
Girls Club Members... include[s]
discharge:... Negative role modeling for
26
pregnancies."'
parent
single
as
such things
While teaching at the Omaha Girls Club, Chambers became pregnant and
was immediately fired. She filed suit, alleging sex and race discrimination under
Title VII. In defense of its decision to fire Chambers, the Club argued that its
express purpose was to "serve young girls between the ages of eight and eighteen
and to provide these women with exposure to the greatest number of available
positive options in life."' 2 The Girls Club asserted "that teenage pregnancy is
contrary to this purpose and philosophy"'28 and "that it honestly believed that to
permit single pregnant staff members to work with the girls would convey the
impression that the Girls Club condoned pregnancy for the girls in the age group
it serves."' 29 The Club maintained that its policy of terminating women who
became pregnant out of wedlock was not based upon a morality standard, but
rather upon its conviction that teenage pregnancy severely limits the
121. 834 F.2d 697 (8th Cir. 1987).
122. Roughly 80 percent of the club's members are African American, as are almost all of its nonadministrative personnel. Id. at 698-699 (8th Cir. 1987).
123. Id. at 698.
124. Id.
125. Id.
126. Id. at 698-699.
127. Id. at 702.
128. Id.
129. Id.
at 701.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
opportunities available to young women.13 °
The Club argued that "[w]hile a single pregnant working woman may, indeed,
provide a good example of hard work and independence, the same person may be a
negative role model with respect to the Girls Club's objective of diminishing the
number of teenage pregnancies."'' Moreover, the Club maintained that, because it
hires its staff not only to teach classes but to act as role models for club members,
its role model rule, including the definition of what attributes role models should
portray, was a bona fide occupational qualification inextricably tied into the duties
and responsibilities it places on its employees. Crystal Chambers' job was not only
to instruct, but also to put herself forward as a role model for young girls.
At both the district court and appellate level, the courts passed over the
Club's lack of empirical evidence that employing single, pregnant women would
"convey the impression that the club condoned pregnancy for the girls in the age
group it serves."' 2 Both courts deferred to the Club's declaration that the "role
model rule" was a justified by business necessity as well as a bona fide
occupational qualification, because "a manifest relationship exists between the
Girls Club's fundamental purpose and its single pregnancy policy."' 3 3 The
Eighth Circuit majority held that the role model rule was a valid bona fide
occupational qualification "reasonably necessary" to the Club's operation, based
the Club's honest belief that to permit single pregnant staff members to work
with the girls would undermine its mission and purpose. 34
The dissent maintained that the district court failed to apply actually the
business necessity and bona fide occupational qualification tests. By not
requiring the Club to "demonstrate a reasonable relationship between teenage
pregnancy and the employment of single pregnant women, the district court
accepted the beliefs and assumptions of [Club] board members" at face value.' 35
The dissent argued that without empirical evidence to back up its assertions, an
employer's "sincere belief' that a discriminatory employment practice is
necessary to the accomplishments of its goals is insufficient to establish a bona
fide occupational qualification or business necessity defense. 36 It concluded:
"The fact that the goals are laudable and the beliefs sincerely held does not
substitute for data which demonstrate a relationship between the discriminatory
practice and the goals. '37 Such reasoning echoed the dissent in Dale, which
argued:
The majority insists that we must 'give deference to an association's
130.
131.
132.
133.
134.
135.
136.
137.
Id.
Chambers v. Omaha Girls Club, 629 F. Supp. 925, 951 (D. Neb. 1986).
Chambers, 834 F.2d at 698-699.
/d. at 702.
Id.
Id. at 708 (citing Chambers v. Omaha Girls Club, 629 F. Supp. 925, 951 (D. Neb. 1986)).
Id. at 708.
Id.
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508
Vol. 25:2
assertions regarding the nature of its expression' and 'we must also give
deference to an association's view of what would impair its expression'...
[The majority ruled that] once an organization 'asserts' that it engages in
particular expression, '[w]e cannot doubt' the truth of that assertion.' This
is an astounding view of the law. I am unaware of any previous instance in
which our analysis of the scope of a constitutional right was determined by
looking at what a litigant asserts in his or her brief and inquiring no further
138
In both dissenting opinions, the Justices argue that courts should not merely
accept a defendant organization's assertions about its expression-which will
undoubtedly, during litigation, evoke the need for the discriminatory action at
issue - but rather demand evidence to prove such assertions. In both Dale and
Chambers, because the employers' values are normative, the courts accepted
them without question; established standards of evidentiary proof were ignored in
the face of employers' "honest beliefs." In light of the lack of evidence proffered
by the Boy Scouts and the Girls Club, the courts' decisions seem to hold that an
organization's asserted right of expressive association is sacrosanct---even when
furthered by discriminatory action - and needs not be substantiated with social
science data.
Moreover, since Chambers and Dale deviated from the role of "model," as
defined by their employers, the courts considered a dismissal from that role to be
'
Regina Austin asserts:
a logical consequence. In her article, SapphireBound!"39
[Crystal Chambers'] skills and natural behavior were not particularly valued
by the people running the Club. Rather than being a role model by virtue of
doing her job and living her own life, Chambers was supposed to perform
the role of model, play a part that was not of her own design. She was a
model in the sense that a model is "something made in a pliable material
(such as clay or wax) that is intended to serve as a pattern of an object of
figure to be made in a more permanent material." When she deviated from
the Club's philosophy and engaged in a practice that was common to the
community of black women from which she and the members came, she
was fired. 40
138. Boy Scouts of Am. v. Dale, 530 U.S. 640, 685-686 (2000).
139. In an astute commentary on the case, Austin writes:
"Firing a young unmarried, pregnant black worker in the name of protecting other young black
females from the limited options associated with early and unwed motherhood is ironic, to say
the least. The Club managed to replicate the very economic hardships and social biases that,
according to the district court, made the role model rule necessary in the first place....
Crystal Chambers was not much older than some of the Club members and her financial and
social status after being fired was probably not that much different from what the members
would face if they became pregnant at an early age, without the benefit of a job or the
assistance of a fully employed helpmate. On the other hand, she was in many respects better
off than many teen mothers. She was in her early twenties and had a decent job. Chambers'
condition became problematic because of the enforcement of the role model rule."
Regina Austin, Sapphire Bound. 1989 WIS. L. REV. 539, 553 (1989) [hereinafter "Austin"].
140. Austin, supra note 139, at 574 (emphasis added).
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
Chambers was supposed to be "an accomplice in regulating the sexuality of
other young black females, in much the same way that she was expected to
tolerate the regulation of her own.' 1 4' Like Dale, Chambers was valued less for
who she actually was than for her outward performance of normative values.
In Harvey v. Young Women's Christian Association, the court ruled that
Harvey's stated intent to "offer herself as a role model of an 'alternative
lifestyle""' 42 legitimated the YWCA's decision to fire her when she became
pregnant out of wedlock. The Young Women's Christian Association (YWCA)
of Charlotte, North Carolina is a "non-profit community service organization that
sponsors or directs educational, recreational, social, and religious programs for
young women and girls in the Charlotte community.' 1 43 In 1974, the YWCA
hired Paula Rebecca Harvey to plan, manage, and teach informal education
classes for young women and girls in cooking, dancing, and gardening. At the
time she was hired, Harvey was a twenty-two year old, unmarried, AfricanAmerican woman. When Ms. Harvey accepted the position at the YWCA, she
signed an agreement to take "individual responsibility for the achievement of the
[YWCA's] purpose."' 144 The YWCA's purpose includes the elimination of
racism, the propagation of the Christian faith "as known in Jesus and nourished
by the resources of that faith,"' 45 and the drawing together "into responsible
membership women and girls of diverse experiences and faiths, that their lives
may be open to new understandings and deeper relationships and that together
they may join in the struggle for peace and justice, freedom and dignity for all
people.' 46
After one year of successful teaching and class management, Harvey
requested permission to initiate a program in which she would work with groups
of teenage girls in the girls' homes or at a local church for educational and
recreational activities. 147 After the program's successful inception, Harvey
discovered that she was pregnant. When she notified the YWCA administrators
about her condition, they questioned her about whether she could continue in her
work with teenagers. She replied that she could "offer herself to the teenagers in
the condition of her unwed pregnancy as a role model of an alternative
lifestyle."' 48 Unhappy with her suggested plan, the YWCA fired her on the
grounds that her stated intent was "completely incompatible with the goals of the
YWCA" and would undermine YWCA's purpose. 1'9Harvey sued, claiming sex
141.
142.
Id.at572.
Harvey v. Young Women's Christian Ass'n, 533 F. Supp. 949, 952 (W.D.N.C. 1982).
143.
Id.at 950.
144.
Id.
145.
146.
147.
148.
149.
Id.
Id. at 950-951.
Id.at952.
Id. at 951-952.
Id.
510
BERKELEYJOURNAL OFEMPLOYMENT& LABOR LAW
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and race discrimination under Title VII.
Defending their decision before the court, the YWCA argued that "[Harvey]
was fired not because of her race and not because of her pregnancy, but rather
because she wished to advocate an alternative lifestyle of unmarried parenthood
to her community youth groups and such conduct would be contrary to the
purpose and functions of the YWCA in its service to young women and girls." '
The YWCA contended that Harvey's intent to "offer herself as an alternative
lifestyle role model" to the teenage girls she had been working with in the
community,"placed the YWCA in a very difficult position." '51
The court maintained that it was hard to believe that a woman working for a
woman-run and woman-centered non-profit organization would have a viable
claim of sex discrimination. It reasoned that, "considering the nature of the
YWCA as an organization of females working to provide for the social,
educational, recreational, and religious needs of females, it is difficult to conceive
of a cognizable claim of sex discrimination being made against it by a female
employee."' 2 It asserted, "Obviously if the defendant had a policy to exclude
employees from employment because of their sex or pregnancy, very few
women would be eligible to be employed by this female organization, be they
wed or unwed."' 53
In so reasoning, the court managed to ignore the fact that women often seek
to define the contours of acceptable femininity and create an
appropriate/inappropriate dichotomy that serves to reign in behaviors that fall
outside the bounds of what deemed socially acceptable. This phenomenon,
referred to as "the pursuit of 'respectability' is "a descriptive term for how the
dominant group secures its position of dominance" by positioning groups on the
margins in "hierarchical relation to one another." "' That is, "[t]he structure of
dominance we have been calling respectability shows us how, as women, we...
secure our own toehold on respectability by disavowing other women."' 55
Characterizations based on race, ethnicity, age, disability, socio-economic class,
and sexual behavior are primary factors in this hierarchy of respectability.
The court then went on to evaluate the validity of Harvey's claim that she
was fired because she became pregnant. Although it conceded that she
established a prima facie case for sex discrimination, the court found that the
YWCA met its burden of showing a legitimate, non-discriminatory reason for
firing Harvey. It held that the decision to fire Harvey was premised upon her
stated "intent to offer herself, in her condition of unwed pregnancy, as an
150. Id. at 952.
151. Id.
152. Id. at 954.
153. Id. at 952.
154. Mary Louise Fellows and Sherene Razack, The Race To Innocence: Confronting Hierarchical
RelationsAmong Women, I J. GENDER, RACE & JUST. 335, 336 (1998).
155. Id.
2004
FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
'alternative lifestyle' role model to the young women and girls in her community
project. As seen by her employer, this course of conduct and philosophy was
contrary to the 'Purpose' and philosophy of the YWCA and violated plaintiff's
56
agreement to espouse these principles in her employment."'
Referencing McConnell and Hollenbaugh,the court held that:
The present case is not simply a matter of an employer making a moral
judgment regarding an unmarried pregnant employee. It is a case in which
the employee sought to remain in the employment of the defendant on her
own terms; a case in which the employee intended to pursue an activist role
in implementing her unconventional ideas concerning societal status to be
accorded unmarried mothers and thereby to foist tacit approval of this status
upon an organization to which such conduct is contrary to its goals and
principles; in this instance, the Young Women's Christian Association. The
Court is not aware of any constitutional fiat or binding principle of
decisional law which
requires an employer such as the defendant to accede
57
to such demands.
The court repeatedly underscored this point, declaring that it was "not
willing to require that an organization such as the YWCA, which according to the
evidence is a movement rooted in the Christian faith, and which has ideals and
goals to which the plaintiff apparently does not subscribe, to employ a person to
teach teenagers in a program under its auspices 'an alternative lifestyle,' which is
abhorrent to the ideals and goals of the defendant YWCA."' 8 The court found
that the YWCA had a legitimate nondiscriminatory reasons for rejecting
Harvey's offer to put herself forward as a role model of an alternative lifestyle
which was sufficient to rebut her prima facie case of sex discrimination, and
ruled in its favor.
Throughout its opinion, the court was particularly incensed that Harvey
deigned to "demand" that the YWCA employ her "on her own terms" and forced
the YWCA to lend "tacit approval" to her decision to have a child while
unmarried. In Harvey and in Chambers, of primary significance to the courts
was the notion that absence of a termination of the women's contracts would be
considered an affirmative act contrary to the organizations' central values. Both
the Omaha Girls Club and the YWCA, with the support of the courts, argued that
if they had allowed these women to continue working-as their pregnancies
became more and more apparent-such decisions would have appeared to
condone what the organizations, and much of society, deemed inappropriate
behavior.
Boyd v. HardingAcademy ofMemphis 59 made explicit that the condemned
behavior-the out-of-wedlock sex-was less of an issue than the inescapable
156.
157.
158.
159.
Harvey, 533 F. Supp. at 954-955,
Id. at 956 (emphasis added).
Id. at 955.
88F.3d410(6thCir. 1996).
512
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physical manifestation of that behavior and the deviant identity that accompanied
it. Andrea Boyd, a young, single, white woman, was hired to be a preschool
teacher at Harding Academy, a religious institution affiliated with the Church of
Christ. When she began working, she was given a handbook which articulated
the school's hiring criteria: "Christian character, as well as professional ability, is
the basis for hiring teachers at Harding Academy. Each teacher at Harding is
expected in all actions to be a Christian example for the students."' 6
When Boyd first became pregnant outside of wedlock, she miscarried and,
explaining her situation, requested a brief medical leave. In response to this
request, the director of the preschool granted it sympathetically, telling Boyd that
"she would pray for her."'' The director testified that she had thought to herself
at the time that "if Boyd had been pregnant, she would have had to terminate
her."' 62 However, she did not report the incident to the president of the
Academy.
Nine months later, Boyd became pregnant outside of wedlock for a second
time. When the director of the preschool discovered this, she and the president of
the Academy fired Boyd on the grounds that her pregnancy "would establish that
she had engaged in extramarital sexual intercourse,"=conduct which was contrary
to the Christian principles held by the school. 63 They told Boyd that "because
she was pregnant and unwed, she set a bad example for the students and parents
and would therefore have to be terminated. ' ' 6" However, they offered that if
Boyd "were to marry the father of the child, she would be eligible for reemployment."1 65 During the meeting, the preschool director and the Academy's
president explained that in the past there had been others teachers who had been
fired for becoming pregnant out of wedlock and who had been rehired after their
marriage to their children's fathers. 166 Boyd sued, alleging sex discrimination in
violation of Title VII.
At trial, the district court held that the Academy's articulated legitimate,
non-discriminatory reason-that it fired Boyd not for becoming pregnant, but
rather for having sex outside of marriage (a violation of the school's code of
conduct)-was not a pretext for sex discrimination. Rather, the court found that
because the Academy had once fired a man for "sexual immorality" and had not
fired six married women who became pregnant, the school's reason was a valid
defense.
Boyd argued on appeal that the district court failed to take into account 1)
that when firing her, her supervisors had repeatedly used the phrase "pregnant
160.
161.
162.
163.
164.
165.
166.
Id. at
411.
Id. at 412.
Id.
Id.
Id.
Id.
Id.
FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
2004
and unwed;" 2) that the director of the pre-school had not taken disciplinary
action when Boyd reported that she had miscarried, and thus, the concern was
less about the extra-marital sex than the extra-marital pregnancy; and 3) that the
Academy had not made an inquiry as to the duration, extent, or continuing nature
of the extramarital sex. However, the court found none of these points
compelling, ruling against them without explanation. In its brief, four-page
decision, the court rationalized its holding only by asserting that "Boyd's action
violated the code of conduct that Harding teachers are required to follow ... [al
67
code of conduct.., applied equally to both sexes."' Despite the district court's
lack of explanation, the Sixth Circuit affirmed the district court's reasoning.
That the court took the Academy's legitimate, non-discriminatory reasoning
at face value was particularly unjust given the fact that the Academy did not fire
Boyd when she miscarried (as much evidence of extra-marital sex as pregnancy)
but did dismiss her when she had successfully conceived. Thus, Boyd is a clear
example of how the performance of morality is of utmost importance both to
employers and to courts. As long as Boyd did not bodily represent extramarital
sex, her behavior was silently condoned and no negative employment actions
were taken.
In these cases, what was at stake was a conflict between appropriate role
model behavior (as defined by the defendant organizations and supported by the
courts) and a women's right to maintain employment while pregnant and
unmarried. In their decisions, the courts framed the employer's right to not
employ staff members who pursue lifestyle choices contrary to organizational
ideology in a manner similar coerced speech and freedom of expressive
association claims outlined in McConnell and Dale. In doing so, the courts
upheld narrow definitions of appropriate role model behavior while establishing
that an employer's professed associational expression can trump an employee's
Title VII rights.
2.
... Versus "Sexual Neophytes" Striving Towards Normative Identities
In contrast, many courts have held that termination of a woman's
employment on the basis of her unmarried pregnancy was not justifiable upon
any grounds. In the following cases the courts ruled that the employers' actions
violated Title VII, as well as these women's constitutional rights to privacy and
equal protection. 68
However, a close reading of the cases demonstrates that in all of these
instances, the women were either 1) intent upon hiding the facts surrounding their
pregnancy from the public, or 2) eagerly working towards marrying the fathers of
Id. at 414.
168. See also Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 1999); Thompson v.
Southwest Sch. Dist., 483 F. Supp. 1170 (W.D. Mo. 1980).
167.
514
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their babies. While the courts argued on behalf of the women's right to be free
from discrimination, they simultaneously legitimized their decisions by
emphasizing that the children with whom the women worked were not at risk of
moral corruption, particularly because the women had taken pains to ensure that
the children were not aware that they had become pregnant while single.
Because this set of plaintiffs covered, having no desire to be seen as stepping
outside the bounds of socially accepted behavior, the courts were free to rule in
their favor. In these cases, the courts found that the plaintiffs' conduct presented
no conflict between freedom of expressive association rights and individual Title
VII rights, because the plaintiffs in these actions made no efforts to challenge the
organizations' messages.
The most explicit example of this second narrative can be found in Ponton
v. Newport News School Board.'69 In this case, Pamela Brown Ponton, an
unmarried home economics teacher in the Newport News School system, was
forced to take a leave of absence when she alerted the school that she had become
pregnant. At first, her superiors questioned her about getting married, and then
suggested that she speak with the district's personnel department, who informed
Ponton that the Newport School system handled "such situations" by giving
unmarried, pregnant teachers three options: get married, take a leave of absence,
or resign. 7 ' The school district personnel department further informed Ponton
that she would not be allowed to teach while she was single and pregnant, as such
a situation would "set a bad example for [her] students."''
Ponton chose to take a leave of absence, but the terms of her leave qualified
that upon her return to teaching, she would not be guaranteed her former job, but
would rather be placed in any teaching position for which she was qualified
"when such a vacancy appears."'7 2 In contrast, married teachers taking a leave of
absence for the duration of their pregnancy were offered a different category of
leave, one that allowed them to work until they were physically unable to
continue working, and that guaranteed that their teaching positions would remain
open (having been filled by a temporary or substitute teacher) for them to assume
upon their return. This second, preferable category of leave was explicitly open
to married teachers going on maternity leave, but not to unmarried teachers.' 73
Left with no other choice, Ponton accepted the terms of the leave offered to her.
On December 15, 1983, Ponton gave birth to a son; fifteen days later, she married
the child's father. She then requested that the Newport school system reinstate
her in a teaching position. However, it was not until October 1985 that a position
for which Ponton was qualified became available.
In this case, the court found a clear violation of Title VII as well as Ponton's
169.
170.
632 F. Supp. 1056 (E.D. Va. 1986).
Ponton v. Newport News Sch. Bd., 632 F. Supp. 1056, 1059 (E.D. Va. 1986).
171.
Id.
172.
173.
Id.
Id.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
constitutional rights to privacy and equal protection. It held that "[Ponton] had a
constitutional right to bear a child while unmarried. It is undisputed that
plaintiff's exercise of this right was the reason she was forced to take a leave of
absence, for if she had been either married and pregnant or single and nonpregnant she would not have been forced to take the leave." '74 Applying a
balancing test developed by the Supreme Court in Connick v. Meyers'75 and
Pickering v. Board of Education'7 6 to determine when the state may legitimately
discharge a public employee for the exercise of her constitutional rights, the court
weighed Ponton's interest in exercising her constitutional rights against the
state's interest in promoting the efficiency of the public services it performs. The
court declared that in this case, "the particular state interest which has been
alleged is that of protecting schoolchildren from exposure to a single, pregnant
teacher."' 77
The court expressed doubt that such a concern was a legitimate state
interest, and ruled that given this doubt, "such a concern does not outweigh
plaintiffs interest in exercising her constitutional right to bear a child out of
wedlock."' 78 In explaining its rationale, the court asserted:
It has not been alleged that the fact that plaintiff became pregnant out of
wedlock indicated some moral defect in plaintiff which made her unfit to
teach. Nor has it been alleged that plaintiff intended to openly advocate
the virtues ofpregnancy out of wedlock.... Rather, the sole allegation is
that the mere sight of an unmarried, pregnant teacher would have a
sufficiently undesirable influence on schoolchildren to justify excluding
the teacher from the classroom. The Court finds this allegation to be
meritless, for the effect on students of the mere sight of a single, pregnant
teacher would be negligible, at best ... It is unclear whether plaintiff's
students would have even been aware that plaintiff was unmarried ...
There was no evidence that plaintiff intended to proselytize her students
regardingthe issue of unwed pregnancy. Plaintiff's pregnancy would not
have affected the School Board's authority to prescribe the curriculum for
plaintiff's students, nor would it have affected plaintiff's ability to
implement this curriculum in her classes. Finally, there was no danger
that plaintiffs single, pregnantstatus could in any way be perceived as
representing a School Board-sponsored statement regarding the
desirabilityofpregnancy out ofwedlock, rather, such status could only be
viewed as representing a personal decision made by plaintiff in her private
capacity.
79
Furthermore, the court underscored the fact that "[i]t has not been alleged
174.
Id. at 1062.
175.
461 U.S. 138 (1983).
176.
391 U.S. 563 (1968).
177.
Ponton, 632 F. Supp. at 1062.
178.
Id.
179.
Id. at 1062-63 (emphasis added).
516
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that the fact that [Ponton] became pregnant out of wedlock indicated some moral
defect in [Ponton] which made her unfit to teach. Indeed, evidence establishes
' 180
that [she] was both desirous and anxious to marry her child'sfather.
The logic made explicit in these statements is clear: Ponton did not have a
"moral defect" because she was "desirous and anxious to marry the child's
father." Moreover, Ponton was not a danger because she would not have
proselytized, advocated, or in any way forced the facts of her specific situation
upon the children she taught. The court was not worried that Ponton's presence
in the classroom would have corrupted young children primarily because they
would not have known that she was pregnant and unmarried. The children
would not have been at risk because Ponton had no plan or intention to "advocate
the virtues of pregnancy out of wedlock." Moreover, because she was contentindeed "anxious"--to remain silent, normalize her status, and allow students to
believe that she was a married woman throughout her pregnancy, the danger that
the School Board would be seen as approving of pregnancy out of wedlock was
minimal. Because Ponton would have remained complicit in the school board's
efforts to hush up the scandal of unwed pregnancy, she did not pose a threat to
either the moral values of young children or the public perception of the school
board's beliefs and principles. The court was therefore free to rule in her favor.
A second example of a court's protection of the rights of women who
became pregnant while unmarried is Andrews v. Drew Municipal Separate
School District.8 ' In this case, the superintendent of the school district issued an
unwritten mandate that being the parent of an illegitimate child would
automatically disqualify an individual from employment within the school
system. The school board, although originally unaware of the rule, eventually
ratified it. The rule, as practiced, adversely affected only unwed mothers, and not
unwed fathers.
18 2
Plaintiff Lestine Rogers had been hired as a teacher's aide before the
initiation of the policy and had stated on her application that she was an
unmarried parent of a child born out of wedlock. When the rule went into effect,
school district administrators informed her that her contract would not be
renewed for the following year. Plaintiff Katie Mae Andrews applied for a
position after the superintendent issued the rule, and, aware of the rule, did not
indicate on her application that she was the mother of a child born out of
wedlock. When school administrators investigated her application, they
discovered that she had indeed borne a child out of wedlock and refused to
consider her application further. One administrator expressly noted on the
application that "this applicant would have been hired ...ifI had not received
180.
Id. at 1062 (emphasis added).
181.
507 F.2d611 (5thCir. 1975).
182.
Id. at 613-614.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
information... that she had a child."' 83 The two women filed suit, alleging Title
VI violations, Equal Protection violations, and violations of §§ 1981 and
1983.84
The district court found that no rational relation existed between the policy
and legitimate educational objectives, and ruled in favor of the plaintiffs, finding
not only equal protection violations, but due process violations as well. In
affirming the judgment, the Fifth Circuit looked to the school district's three
proffered objectives for implementing the rule: "1. unwed parenthood is prima
facie proof of immorality; 2. unwed parents are improper communal role models,
after whom students may pattem their lives; 3. employment of an unwed parent
in a scholastic environment materially contributes to the problem of school-girl
'
Although the Fifth Circuit agreed that the creation of a
pregnancies."185
"scholastic environment which was conducive to the moral development as well
as the intellectual development of the students ... [was] certainly [an] objective
... not without legitimacy ... [as] schools have the right, if not the duty, to create
a properly moral scholastic environment,"' 86 it rejected the school district's
rationale for its "no unwed mothers" rule.
Addressing the school district's first proffered explanation, that "unwed
parenthood is prima facie proof of immorality,"' 87 the Fifth Circuit quoted the
district court's reasoning at length, the crux of which is embodied in the
following statement: "The rule makes no distinction between the sexual neophyte
and the libertine."' 88 Essentially, the district court held that the rule was overly
inclusive, in that it swept women who have been raped, women who became
pregnant while engaged and whose fianc~s then died, and women who had
subsequently married the fathers of their children all into the same category along
with "libertines"-sexually promiscuous women of doubtful moral character.
Next, the Fifth Circuit investigated the argument that "unwed parents are
improper communal role models, after whom students may pattem their lives."' 8 9
The school district had argued that the dispositive issue is "whether the open and
notorious existence of the [plaintiff's] status ... would injure the affected
students."' 9 ° In an interesting leap of logic, the court refuted this argument by
finding that "the record before [the court] contains no evidence of proselytizing
of pupils by the plaintiffs and reveals instead that each plaintiff, along with her
183. Id. at 613.
184. The plaintiffs made these claims because Title VII had not yet been amended to explicitly
include pregnancy as a protected status.
185. Id.at 614.
186. Id.
187. Id.
188. Andrews v. Drew Mun. Separate Sch. Dist., 507 F.2d 611, 613-614 (5th Cir. 1975)(citing
Andrews v. Drew Mun. Separate Sch. Dist., 371 F. Supp. 27, 33-34 (N.D. Miss. 1973)).
189. Id. at 614.
190. Id. at 616 (internal citations omitted).
518
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illegitimate offspring, is living under the same roof as her parents, brothers and
sisters."'' The court found that "it would be a wise child indeed who could infer
knowledge of either plaintiff's unwed parent status based on the manner of the
plaintiffs' existence."' 9 2 It quoted the district court, concurring that:
In the absence of overt, positive stimuli to which children can relate, we are
convinced that the likelihood of inferred learning that unwed parenthood is
necessarily good or praiseworthy, is highly improbable, if not speculative.
We are not at all persuaded by defendants' suggestions ... that students are
apt to seek out knowledge of the personal and private family life-styles of
teachers or other adults within a school system (i.e. whether they are
divorced, separated, happily married 1or
single, etc.) and, when known, will
93
approve of and seek to emulate them.
The court made a cursory dismissal of the school district's third rationale
that "employment of an unwed parent in a scholastic environment materially
contributes to the problem of school-girl pregnancies"' 94 by pointing to the lack
of empirical evidence on the record in support of such an idea.
Unlike the cases explored above, both Andrews and Rogers had been
pregnant and given birth long before the school district took action against them.
Their out-of-wedlock pregnancies were far in the past; no tangible, physical
evidence of the women's status of single motherhood was discemable to the
students they were teaching. The court placed heavy emphasis on the notion that
the students could not possibly infer knowledge of the women's status as mothers
of children born out of wedlock from their behavior in the classroom. Both
Rogers and Andrews were quiet about the fact that they had had children out of
wedlock, with Andrews even taking pains to hide her child's existence from the
district so as to be hired for ajob for which she was otherwise qualified. Because
they did not outwardly manifest/perform their status as unwed mothers, the court
found no danger that the women would corrupt the children with whom they
worked.
Moreover, the court considered the fact that each woman had remained
sheltered in her parents' nuclear family as evidence of a certain moral
uprightness. Intriguingly, the court found that the fact that each woman was
living with her parents and siblings was further proof of the women's lack of
intent to influence the morals and ethics of her students. A more useful inquiry
into each woman's intent to influence children would have been to look at
Rogers' conduct as a teaching aide while working for the school district, or at
Andrews' desire to hide her child's existence from the school administration.
Furthermore, while the court rightly based its decision upon a finding of clear
violations of the Due Process and Equal Protection clauses of the Constitution, it
191.
192.
193.
194.
Id. at 616.
Id.
id. at 616 (citing 371 F. Supp. 27 at 35).
Id.at 614.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
explained that it was free to do so because the women were not "forc[ing] tacit
approval of this socially repugnant concept" upon the school district by openly
advertising their status or actively trying to influence the morals and ethics of
their students.'95
In Vigars v. Valley Christian Center of Dublin,'96 the plaintiff was fired
from her job at a religious school, The Valley Christian Center, for becoming
pregnant while in the midst of divorcing her first husband and marrying her
second, the father of her baby. Janelle Vigars sent her children to the Center's
school and worked in its library as a librarian. As an employee of the Center, she
was required to sign a statement of faith, declaring that she was a "born-again
believer living a consistent and practical Christian life," committing herself to
the church's mission of instilling fundamentalist Christian values in its
congregation, and pledging to live a fundamentalist Christian lifestyle in
emulation of the life of Jesus Christ. When Vigars became an employee, she
received a handbook that detailed how she was expected to further the Center's
mission by taking on the responsibility of serving as a mentor and role model for
students. Moreover, as the mother of children attending to parochial school,
every year she signed an agreement in which she vowed that she and her children
would be bound by the moral values, doctrines, and beliefs of the church.197
Aside from working with children in the library, Vigars also taught physical
education classes, was a teacher's aide in various classrooms, and spent some
time working as a child care provider for the church.' 98 Vigars' conduct at her
job was fully within the parameters of Church moral policy. Yet when she
informed the Center that she had begun the process of having her first marriage
annulled while simultaneously planning to marry another man with whose child
she was pregnant, the Center immediately fired her. The Center initially fired her
for the "sin" of becoming pregnant out of wedlock; her termination letter
expressly stated that the reason for her termination was that she was "pregnant
without the benefit of marriage." However, later, in its motion for summary
judgment, the Center alleged that she was actually fired for being involved in an
adulterous affair-having sexual relations with her husband-to-be while still
legally married to her first husband.'99
The Center argued at trial that "whether or not plaintiff's pregnancy was the
precipitating event which led to her termination, the underlying decision to fire
the plaintiff was a religious one, based upon a widely recognized and sincerely
held belief that extramarital sex is a sin."2 ° It argued that its decision to fire
195.
citations
196.
197.
198.
199.
200.
Andrews v. Drew Mun. Separate Sch. Dist., 507 F.2d 611, 616 (5th Cir. 1975) (internal
omitted).
805 F. Supp. 802 (N.D. Ca. 1992).
Id. at 804.
Id.
Id.
at 805.
Id.
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Vigars was justified by both business necessity and bona fide occupational
qualification defenses; in her capacity as a librarian, Vigars served as a role
model for the students with whom she worked, and therefore, her status as a
woman pregnant outside of wedlock violated the bona fide occupational
qualification that her behavior embody the values and beliefs of the
fundamentalist Christianity preached by the Center.2"'
In finding for Vigars, the court summarily dismissed the Center's argument
that as a religious institution it was exempt from various anti-discrimination
statutes. Distinguishing Chambers, the court reasoned that while Chambers'
explicit function was to be a role model for the young girls with whom she
worked, Vigars job was not expressly to be a role model, but first and foremost to
be a librarian. The court held:
In order to assert the defenses, the person's job must depend upon the
discriminatory characteristic. In the present case, plaintiff acknowledges
that she was required to work closely with the students and to practice a
lifestyle which modeled the mission of the church to the students, and that
she understood that the school stressed the importance of modeling moral
values and religious doctrine to the students. However, there is serious
disagreement about how central her moral life was to her job as librarian,
whether or not she was truly expected to act as a role model in the
Chambers sense, and what impact her pregnancy truly had on her ability
to perform either of those functions.0 2
Vigars and Hollenbaugh are similar in many ways. Both Vigars and
Hollenbaugh were librarians who worked with children and both women became
pregnant while having an affair with men to whom they were not married. Yet,
by the time Vigars' child was born, she had attained a divorce from her first
husband and married the father of her child. Interestingly, while the library
Hollenbaugh worked for was a public institution, the Center where Vigars
worked was a private religious organization. That the courts upheld employment
discrimination by a public town library but not by a private institution invoking a
religious exemption in its defense is remarkable. Again, however, this
divergence points to the manner in which the women were manifesting their
adulterous behavior and out-of-wedlock pregnancy. Hollenbaugh refused to
marry her child's father, preferring to live openly with him even while he had not
yet divorced his wife, while Vigars was speedily working toward marrying her
baby's father.
201. Id. at 808.
202. Id. at 808-09.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
IV.
THE RIGHT TO EXPRESSIVE ASSOCIATION AND THE TITLE VII
PROTECTIONS
In the cases discussed above, the idea of protecting children from immoral
influences is tightly intertwined with the idea of protecting institutions from being
forced to transmit messages with which they disagree. In fact, I argue that the
rhetoric of protecting children from corruption is merely a pretext for the project
of protecting adults' rigid senses of morality and appropriate behavior. Role
models seem to be used more as a means of social control than as a way of
inspiring and motivating youth.
While courts can disregard homosexuals' rights through the invocation of
coerced speech rationales without creating any legal conflicts, when they apply
these rationales to cases involving sex discrimination, they essentially hold that
First Amendment rights trump Title VII protections. Discrimination is not a
protected First Amendment right, yet in the cases explored above, the courts
ruled that when an individual's behavior threatens to tarnish her employer's
public reputation, discriminatory employment actions are warranted, as inaction
would be equated with support for deviant behavior. Of primary significance to
the courts is the notion that not terminating the women's contracts would be
considered an affirmative act contrary to the organizations' central values. In this
way, expressive association and the "essence of the business" standard seem to
overlap; courts use them both to legitimize an organization's right to define the
contours of its public message. The courts' holdings suggest that a woman's
public performance of "deviancy" effectively gives her employer a coerced
speech claim that will weigh heavier in the balance of rights.
This set of cases, taken together with the line of homosexuality cases
outlined in Part II, creates an invidious precedent: when an employee's actions
could be construed as expression contrary to an employer's or a group's chosen
public image, message, or mission, that organization or employer's First
Amendment right of expressive association is at risk. Even when employers
have not expressly articulated this First Amendment right in their defense of a
discriminatory employment action, the court makes the argument for them, using
"coerced speech" or forced "tacit approval" analyses.
Is this line of cases analytically correct? Should First Amendment rights of
expressive association override Title VII protections? Does Title VII
unconstitutionally infringe upon constitutional rights? When you have two rights
in opposition, why should the scales tip in favor of Title VII? The answer is
grounded in the Supreme Court's holdings in Roberts v. Jaycees °3 and Board of
2 4 Within the text of
Directorsof Rotary Internationalv. Rotary Club of Duarte.
203.
204.
468 U.S. 609 (1984).
481 U.S. 537 (1987).
522
BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW
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these decisions is direct opposition to the idea that discrimination can be a
protected form of associational expression.
In Roberts, the nonprofit organization United States Jaycees threatened to
revoke the charters of two of its Minnesota chapters that disobeyed
organizational rules by admitting women to their groups. Jaycees brought suit
against Minnesota state officials, alleging that the state's interest in prohibiting
discrimination on the basis of gender violated their constitutional rights of free
speech and association. In finding against Jaycees, the Supreme Court ruled that
the state's compelling interest in eradicating discrimination against its female
citizens justified a limitation of the group's freedom of expressive association.
The Court found no basis in the record to support the conclusion that admission
of women as full voting members in the organization would impede Jaycees'
ability to engage in these protected activities or to disseminate its preferred
views."0 5 The Court ruled:
Even if enforcement of... [Minnesota's public accommodations] Act
causes some incidental abridgment of the Jaycees' protected speech, that
effect is no greater than is necessary to accomplish the State's legitimate
purposes. As we have explained, acts of invidious discrimination in the
distribution of publicly available goods, services, and other advantages
cause unique evils that government has a compelling interest to preventwholly apart from the point of view such conduct may transmit.
Accordingly, like violence or other types of potentially expressive activities
that produce special harms distinct from their communicative impact, such
practices are entitled to no constitutional protection. ...
In prohibiting such
practices, the Minnesota Act therefore "responds precisely to the
substantive problem which legitimately concerns" the State and abridges no
more speech or associational freedom than is necessary to accomplish that
purpose. 206
Duarte, fortifying this reasoning, held that the nonprofit organization Rotary
International could not exclude women from membership. Plaintiffs, members
of a Rotary International chapter that admitted women, claimed that the
organization's ban on female membership violated California's Unruh Civil
Rights Act.20 7 In defense, Rotary argued that as it was not a business
establishment, it was not subject to the Unruh Act's mandate against gender
discrimination. Finding that indeed Rotary International was a business
establishment to which the Unruh Act applied, the Supreme Court held that even
though the Act did infringe upon the organization's right of expressive
association, such an infringement was justified by the state's compelling interest
in prohibiting discrimination against women.0 ' The Court held:
205.
206.
207.
208.
Roberts, 468 U.S. at 627.
Id. at 628-629.
Cal. Civ. Code § 51 (1982).
Duarte, 481 U.S. at 549.
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FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
Even if the Unruh Act does work some slight infringement on Rotary
members' right of expressive association, that infringement is justified
because it serves the State's compelling interest in eliminating
discrimination against women ....
On its face the Unruh Act, like the
Minnesota public accommodations law we considered in Roberts, makes no
distinctions on the basis of the organization's viewpoint. Moreover, public
accommodations laws "plainly serv[e] compelling state interests of the
highest order ... " In Roberts we recognized that the State's compelling
interest in assuring equal access to women extends to the acquisition of
leadership skills and business contacts as well as tangible goods and
services ... The Unruh Act plainly serves this interest. We therefore hold
that application of the Unruh Act to California Rotary Clubs does not
violate the right of expressive association afforded by the First
Amendment.2"9
Roberts and Duarte could not be clearer: when government has a
compelling interest in prohibiting a certain form of protected expression, that
compelling interest limits organizational rights of expressive association. A
lurking question, however, is that since the majority of expressive association
cases pertain to situations where the expressive organization is a private group or
club, how do these rulings this apply when the right is being invoked in
employment cases, as explored herein?.
O'Connor's concurrence in Roberts offers a solution. In its analysis, the
majority ruled that the balancing-of-interests test should hinge on whether an
organization has satisfied proof of a membership-message connection.
O'Connor argues that such a test may have the effect of "rais[ing] the possibility
that certain commercial associations, by engaging occasionally in certain kinds of
expressive activities, might improperly gain protection for discrimination. ' 2i"
She asserted that "[w]hether an association is or is not constitutionally protected
in the selection of its membership should not depend on what the association says
or why its members say it." '' O'Connor reasoned:
On the one hand, an association engaged exclusively in protected
expression enjoys First Amendment protection of both the content of its
message and the choice of its members. Protection of the message itself is
judged by the same standards as protection of speech by an individual....
On the other hand, there is only minimal constitutional protection of the
freedom of commercial association.
There are, of course, some
constitutional protections of commercial speech... But the State is free to
impose any rational regulation on the commercial transaction itself. The
Constitution does not guarantee a right to choose employees, customers,
suppliers, or those with whom one engages in simple commercial
transactions, without restraint from the State. A shopkeeper has no
209.
210.
211.
Id. (internal citations omitted).
468 U.S. at 632.
Id. at 633.
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BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW
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21 2
constitutional right to deal only with persons of one sex.
O'Connor offered a second rationale for why civil rights should not be
displaced by an organization's right of expressive association: a state's
prerogative to impose "time, place and manner" restrictions on an organization's
actions. She asserted:
The dichotomy between rights of commercial association and rights of
expressive association is also found in the more limited constitutional
protections accorded an association's recruitment and solicitation activities
and other dealings with its members and the public. Reasonable, contentneutral state regulation of the time, place, and manner of an organization's
relations with its members or with the State can pass constitutional muster,
but only if the regulation is "narrowly drawn" to serve a "sufficiently
"without unnecessarily interfering with First
strong, subordinating interest"
2 13
Amendment freedoms.
O'Connor concluded by asserting that a commercial organization
enjoys only minimal constitutional protection in its recruitment, training
and solicitation activities. When these activities are conducted in a
discriminatory manner, state interests in ending employment and consumer
discrimination trump the commercial organization's right of expressive
association.1 4
Such a rationale could be extended to encompass
employment discrimination cases like those discussed above.
CONCLUSION
In the cases explored herein, the courts' rulings are more concerned with the
perfonnance of normative morality than with its actuality. Not only do these
cases establish an erroneous precedent that preferences organizations' expressive
association rights over Title VII rights, they also serve to entrench normative
notions of acceptable role model behavior. As long as the women covered by
keeping their status a secret, marrying the fathers of their children, or living at
home with their parents, their employers were deemed irrational when firing
them. Like the "good" covering homosexual and the "bad" flaunting
homosexual, any assertions of pride or self-acceptance by these women were
seen as dangerous, particularly because they were supposed to be serving as role
models for the children with whom they worked. For as role models, these
women were "exerting a subtle but important influence over [students']
perceptions and values."" 5
Such rulings point to the legal system's complicity in the project of rigidly
defining who may be an appropriate role model for children and exerting social
212. Id. at 633-634 (emphasis added).
213. O'Connor bases this reasoning on Supreme Court precedent. Id. at 634-35 (citing cases).
214. Id. at 635.
215. Ambach, 441 U.S. at 78-79.
2004
FROM HESTER PRYNNE TO CRYSTAL CHAMBERS
control over the representation of normative morality. Those individuals who are
proud of their deviancy from societal norms and "decline voluntarily and openly
to accept the social place accorded them 21 6 are cast out of their positions as role
models. In such a way, then, are role models as defined by courts really models
of anything but compliance with hegemonic ideals of respectability? As our
society evolves and increasingly breaks free from modernist constructions of "the
way things are supposed to be," who will serve as our role models?
In her article, Cultural Dissent,"7 Madhavi Sunder suggests that "cultures
now more than ever are characterized by cultural dissent: challenges by
individuals within a community to modernize, or broaden, the traditional terms of
Not satisfied to choose between tradition and modernity,
cultural membership ...
people in the modem world want both. They want culture, but on their own
terms." 8 In response, however, those fighting to keep their cultures "pure" and
"traditional" (i.e. rigidly rooted in the past, in a modernist sense of clearly defined
boundaries and borders) increasingly look to law to stifle internal debate and to
preserve increasingly artificial cultural categories. The law's response has been
to hold tightly to the notion of culture as fixed and stable, and through a process
'
has helped to silence
of "unreflectively defer[ing] to a culture's leaders"219
in
the
hope
of restoring cultural
cultural
dissenters
internal debate " by exiling
22
associations back to some glorious, homogeneous past.""
Although it explicitly refers to the idea of deviance within discrete cultures,
I believe that this idea can be applied to "deviant" lifestyle choices usually
hemmed in by "American" standards of what is normative. Sunder's general
premise is that while anthropologists and sociologists have increasingly come to
realize that culture is not fixed or stagnant, the American legal system has
retained this view of culture as a rigid, static entity. By siding with a culture's
elites-be they church officials or leaders of the Boy Scouts--the legal system
effectively silences dissenters, banishing those who would like to push the
boundaries of what it means to be a member of a culture and exiling individuals
who would "challenge power relationships within a culture." 221 Moreover,
courts' unhesitant acceptance of employers "honest beliefs" about the actions
necessary to profess their organization's message serves only to validate and
entrench an organization's discriminatory behaviors. As a result of the judicial
system's tendency to support leaders' inflexible defense of the status quo, the
courts have "paved the way for the rise of a new right to exclude, not from an
'
As
association's membership, but rather, from an association's meaning."222
216.
GOFFMAN, supra note 24, at 143.
217.
218.
219.
220.
221.
222.
Madhavi Sunder, CulturalDissent, 54 STAN. L. REV. 495 (2001).
Id. at 497.
Id. at 552.
Id. at 523.
Id. at 503.
Id. at 542.
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Vol. 25:2
shown by the cases explored above, the result is a dramatic narrowing of possible
expression, as "difference is rooted out, if not by the force of culture, than at least
by the force of law. '2 3
Can and should the law protect the choices and actions of professionals who
choose not to cover? I believe that it should. How, then, can we escape the
rigidity outlined in the legal decisions examined above, and instead present a
variety of appropriate, strong, positive role models for children who espouse a
spectrum of views and represent a wide variety of lifestyles? Austin suggests that
we should read Chambers' story as a an example of how "young, single, sexually
active, fertile, and nurturing black women... have the temerity to attempt to
break out of the rigid economic, social, and political categories that a racist,
sexist, and class-stratified society would impose upon them."
Thus, it is
necessary to allow room for Chambers and other similarly-situated women to be
held up as real, authentic role models who truly do embody the struggle to break
down traditional notions of identity and propriety. 5
One way that room for such role models could be made is by establishing an
evidentiary burden on employers and organizations claiming that an employee's
action goes against their associational expression. As articulated by the dissents
in Dale and Chambers, courts have condoned discriminatory employment
actions after taking a defendant organization's professed mission, goals and
views at face value. Necessitating empirical proof of an organization's asserted
expression may help to allow for the diversity of opinions that coexist within any
given institution and organization.
Moreover, the holdings in Roberts and Duarte,and not Dale or McConnell,
should extend to those situations where courts are balancing an organization's
First Amendment freedom of expression rights against an individual's Title VII
rights. While constitutional protections are of the highest order, these cases have
clearly established that in certain circumstances, a government's compelling
interest in ending discrimination should trump discriminatory forms of freedom
of expression.
223.
Id. at 544.
224.
Id.
225. For Adeno, role models are most productive for society when they break out of the rigid
norms and ideals that they are supposed to personify and instead " wage a transformative battle by reinscribing and redefining the role that he or she supposedly occupies and represents to others." Adeno,
supra note 13, at 1467. Rather than merely being "passive and mechanical role occupants," authentic
role models are "individuals who can actively redefine their positions using the very cultural resources
and horizons of significance that have been excluded from the process of role-constitution." Id. at 1466.
Adeno sees this kind of role model as an exemplary guide who could equip "marginal groups with the
vocabulary, the voice, and the imagination to provide an effective countemarrative to the dominant
narrative of exclusion and devaluation." Id. at 1467.